Judicial Review of the Legislative Process

2006 ◽  
Vol 39 (2) ◽  
pp. 182-247 ◽  
Author(s):  
Suzie Navot
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Due Process ◽  
Comparative Law ◽  
Legislative Process ◽  
Basic Rights ◽  
Legislative Procedures ◽  
The Supreme Court ◽  
Israeli Supreme Court ◽  
The Relationship

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.

Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999

2001 ◽  
Vol 34 (2) ◽  
pp. 321-355 ◽  
Author(s):  
James B. Kelly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Administration Of Justice ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Relationship ◽  
Provincial Autonomy

This article considers the relationship between rights and federalism in the Supreme Court of Canada's review of cases invoking the Canadian Charter of Rights and Freedoms. It considers whether the Supreme Court of Canada has compromised provincial autonomy by establishing Canada-wide standards in provincial areas of jurisdiction. It suggests that the centralization thesis associated with judicial review on Charter grounds is inconclusive, and combining several processes under the rubric of centralization, it misrepresents the Charter's effect on Canadian federalism and provincial autonomy. Further, the centralization thesis has lost much momentum during the course of Charter review, and, as a result, is a limited approach to understanding the relationship between rights and federalism in Canada. Specifically, the Supreme Court of Canada has demonstrated sensitivity to federalism in its Charter jurisprudence, most evident in a complex jurisprudence that has served to offset the centralization thesis and its implications for provincial autonomy. This threepart federalism jurisprudence is federalism as gatekeeper, an explicit federalism jurisprudence and an implicit federalism jurisprudence, which is most evident in the relationship between criminal rights and provincial responsibility for the administration of justice. This article demonstrates that the Court's approach to Charter review has seen a reconciliation between rights and federalism, most evident in the declining importance of the centralization thesis and the growing importance of the three-part federalism jurisprudence during Charter review. This sensitivity to federalism has existed since the beginning of the Court's Charter jurisprudence but has largely been overshadowed by the dominance of the centralization thesis in the Charter debate.

scholarly journals Refleksi Konstitusionalitas Pengawasan Peraturan Daerah Pasca Putusan Mahkamah Konstitusi Nomor 137/PUU-XIII/2015

2019 ◽  
Vol 16 (2) ◽  
pp. 391
Author(s):  
Firdaus Firdaus
Keyword(s):  
Local Government ◽  
Supreme Court ◽  
Judicial Review ◽  
Central Government ◽  
Constitutional Court ◽  
Legal Standing ◽  
The Supreme Court ◽  
The Government ◽  
And Function ◽  
The Relationship

Peraturan Daerah (Perda) sebagai produk hukum pemerintahan daerah untuk mengatur dan memerintah sendiri sebagai manifestasi otonomi, tetapi dalam praktiknya sering kali dihadapkan dengan penundaan atau pembatalan akibat fungsi pengawasan preventif atau represif oleh Pemerintah. Melalui Putusan Nomor 137/PUU-XIII/2015, Mahkamah Konstitusi (MK) meneguhkan fungsi pengawasan preventif dan membatalkan fungsi pengawasan represif dengan harapan: pertama mengakhiri dilema konstitusional fungsi Pengawasan Pemerintah terhadap Perda; kedua, memperkuat otonomi daerah; dan ketiga, meneguhkan pengujian perda sebagai kompetensi Mahkamah Agung (MA). Namun hal tersebut justru menciptakan dikotomi baru, baik terkait hubungan Pemerintah Pusat dengan pemerintahan daerah maupun dalam memaknai fungsi pengawasan represif dihubungkan dengan kompetensi MA menguji peraturan perundang-undangan di bawah undang-undang terhadap undang-undang. Bentuk dikotomi baru yang dimaksud; pertama, merevitalisasi instrumen sentralisme; dan kedua mereduksi otonomi dan fungsi kekuasaan Pemerintah dengan karakteristik yang bersifat aktif, sepihak (bersegi satu) dalam mengawasi dan memastikan pelaksanaan undangundang. Dimensi konstitusional yang harus dipastikan, bahwa pelaksanaan fungsi pengawasan represif terhadap Perda memberi kedudukan hukum bagi Pemerintah Daerah otonom untuk dapat mengajukan permohonan pengujian kepada MA.Local Regulation (Perda) as a legal product of local government is to regulate and govern itself as a manifestation of autonomy. Yet, in practice it is often confronted with delays or cancellations due to the Government's preventive or repressive supervision functions. Through Decision Number 137 / PUU-XIII / 2015, the Constitutional Court (MK) affirmed the function of preventive supervision and canceled the repressive supervision function in the hope of: first, ending the constitutional dilemma of the Government Oversight function on Local Regulations; second, strengthening local autonomy; and third, confirm the perda review as Supreme Court (MA) competency. However, this actually creates a new dichotomy, both in relation to the relationship between the Central Government and the local government and in interpreting the repressive monitoring function associated with the MA competency in examining the legislation under the regulations toward the statute. The form of the new dichotomy in intended; firstly, revitalize the instrument of centralism; and secondly reducing the autonomy and function of the Government's power with active, unilateral (onesided) characteristics in supervising and ensuring the implementation of the statute. The constitutional dimension that must be ensured is that the implementation of the repressive oversight function of the Local Regulation gives a legal standing for the autonomous local Government to be able to submit an application for judicial review to the Supreme Court.

scholarly journals TRIBUNAL JUSTICE AND PROPORTIONATE DISPUTE RESOLUTION

2012 ◽  
Vol 71 (2) ◽  
pp. 297-324 ◽  
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Judicial Review ◽  
Administrative Law ◽  
Legal Doctrine ◽  
Legal Policy ◽  
High Court ◽  
The Supreme Court ◽  
Institutional Landscape ◽  
The Relationship

AbstractThe tribunals system in England and Wales has been transformed by the entry into force of the Tribunals, Courts and Enforcement Act 2007; among other things, tribunals are now located more firmly and explicitly than ever before within the judicial branch. Questions concerning the relationship between tribunals and regular courts fall to be confronted afresh within this new institutional landscape. Those questions form the focus of this article, which is particularly concerned with the issue recently considered by the Supreme Court in Cart whether, and if so to what extent, decisions taken within the tribunals system (by the Upper Tribunal) should be susceptible to judicial review by the High Court. In Cart, emphasis was placed upon the concept of “proportionate dispute resolution” as a means by which to delimit regular courts' oversight of tribunals' decisions, raising fundamental questions both of legal doctrine (relating to the relevance of the orthodox doctrinal tools of administrative law) and legal policy (concerning the degree of error on the part of a tribunal that a higher court should tolerate in the interests of the efficient, or proportionate, use of judicial resources).

scholarly journals Hubungan Antara Partisipasi Masyarakat, Pembentukan Undang-Undang dan Judicial Review

2019 ◽  
Vol 9 (1) ◽  
pp. 168-193
Author(s):  
Riza Multazam Luthfy
Keyword(s):  
Public Policy ◽  
Public Participation ◽  
Supreme Court ◽  
Community Participation ◽  
Judicial Review ◽  
Policy Making ◽  
Constitutional Court ◽  
The Public ◽  
The Supreme Court ◽  
The Relationship

Community participation in national and state life today is an important study. This is because in a democratic country, public policy cannot be separated from public participation. This study seeks to discuss the relationship between community participation, the making of Act and the implementation of judicial review. The results showed that: (1) Public participation in the making of Act and the implementation of judicial review can: (a) Provide a better basis for public policy making in creating good governance. (b) Increase citizens' trust in the executive and legislative branches. (c) Save human resources, because with the involvement of the community in public policy making, the resources used in public policy socialization can be minimized. (2). Community participation in evaluating Act becomes an important activity, in order to establish control whether an Act is in accordance with its objectives or not. The public can submit a judicial review to the Supreme Court (MA) or the Constitutional Court (MK) if they judge that their rights have been impaired by certain Act. (3). The relationship between community participation and the making of Act and the implementation of judicial review is very close. Without community participation, the Act produced does not reflect the interests of the community and only prioritizes the interests of certain groups. The Constitutional Court (MK) and the Supreme Court (MA) will not conduct a judicial review if there is no request from the public.

Interventions in Judicial Review Proceedings

2020 ◽  
pp. 75-80
Author(s):  
Nathalie Lieven
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Supreme Court ◽  
International Law ◽  
Judicial Review ◽  
Exponential Growth ◽  
Comparative Law ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Judicial Proceedings

This chapter examines the growth and value of interventions in judicial proceedings. It argues the exponential growth in interventions is largely attributable not to the CPR, but the introduction of the Human Rights Act. The decision whether or not to allow an intervention, and then whether to give any weight to its content is wholly discretionary. Interventions are part of a wider trend to an increasingly inquisitorial jurisdiction, beyond the adversarial contest between the parties. Two reasons for the growth in interventions are courts’ willingness to take into account broader policy considerations in judicial review proceedings, and relatedly the willingness of the courts to hear international law and comparative law arguments and place weight on them. The Supreme Court, in particular, has encouraged interventions in recent years, and Baroness Hale has made clear in writing how useful she finds them. Although interveners are now subject to the risk of adverse costs orders under the Criminal Justice and Courts Act 2015 for interventions deemed to be unhelpful, to date these provisions do not appear to have been applied, which suggests that that this part of the Government’s efforts to discourage interveners has been unsuccessful.

Human rights in times of terror – a judicial point of view

Legal Studies ◽  
2008 ◽  
Vol 28 (4) ◽  
pp. 493-505 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Judicial Review ◽  
Point Of View ◽  
Democratic State ◽  
The Supreme Court ◽  
The Status ◽  
Protection Of Human Rights ◽  
Israeli Supreme Court

This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

scholarly journals Effectiveness of Judicial Review in the Polish Competition Law System and the Place for Judicial Deference

2016 ◽  
Vol 9 (14) ◽  
pp. 97-124
Author(s):  
Maciej Bernatt
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Judicial Review ◽  
Due Process ◽  
Competition Law ◽  
Market Definition ◽  
Competition Authority ◽  
Relevant Market ◽  
Law System ◽  
The Supreme Court

The article discusses the effectiveness and the intensity of judicial review in the Polish competition law system. First, it studies whether the judicial review offered by the 1st instance Court of Competition and Consumer Protection in Warsaw (SOKiK) is effective in practice. Next, the article analyzes whether Polish courts tend to defer to the findings of the Polish competition authority, UOKiK. Judgments of the Supreme Court concerning relevant market definition serve as case studies. Finally, the article discusses whether proceedings before the Polish competition authority ensure sufficient due process guarantees, the impartiality of decisionmakers, and the overall expert character of UOKiK’s decision-making process. On this basis the article examines whether there are grounds for the reviewing courts to defer to UOKiK’s findings. The article concludes that currently the review undertaken by SOKiK happens to be superficial and thus ineffective. At the same time, the Supreme Court’s review of the determination of the relevant market is not deferential towards UOKiK’s findings. The Supreme Court substitutes its own definition of the relevant market for that of UOKiK and that of the lower courts. However, the article shows that there are no grounds at the moment for arguing for greater judicial deference. Proceedings held before UOKiK, despite recently introduced improvements, still do not offer sufficient due process guarantees or a division between investigatory and decision-making functions. In addition, UOKiK’s expertise is not sufficient for both institutional and practical reasons

scholarly journals What�s Sovereignty Got to Do with It?: Due Process, Personal Jurisdiction and the Supreme Court

2018 ◽  
Author(s):  
Wendy Collins Perdue
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
The Supreme Court ◽  
The Relationship ◽  
Personal Jurisdiction

In this symposium contribution I do two things. First, I explore the relationship between sovereignty and due process in personal jurisdiction in some of the more problematic aspects of the Nicastro opinions. I conclude that, although at one time the concept of sovereignty provided an important analytic component of personal jurisdiction analysis, this is largely no longer true.

scholarly journals Insurance related problems in bareboat charter agreements

2021 ◽  
Vol 6 (1) ◽  
Author(s):  
Albano Gilabert Gascón
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Third Parties ◽  
Insurance Contract ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The One ◽  
The Baltic ◽  
The Relationship

AbstractIn 2017, the majority of the United Kingdom Supreme Court held in its judgment in the Gard Marine and Energy v China National Chartering (The Ocean Victory) case that, in bareboat charters under the ‘BARECON 89’ form, if both the owner and the charterer are jointly insured under a hull policy, the damages caused to the vessel by the charterer cannot be claimed by the insurer by way of subrogation after indemnifying the owner. The interpretation of the charter party leads to the conclusion that the liability between the parties is excluded. Faced with the Supreme Court’s decision, the Baltic and International Maritime Council (BIMCO) adopted a new standard bareboat charter agreement only a few months later, the ‘BARECON 2017’ form, which amends, among other clauses, the one related to insurance. The present paper analyses (i) the new wording of the clause mentioned above and (ii) its incidence on the relationship between the parties of both the charter agreement and the insurance contract and its consequences for possible third parties. Despite BIMCO’s attempt to change the solution adopted by the Supreme Court and his willingness to allow the insurer to claim in subrogation against the person who causes the loss, the consequences, as it will be seen, do not differ much in practice when the wrongdoer is the co-insured charterer. On the contrary, when the loss is caused by a time charter or a sub-charter, in principle, there will be no impediment for the insurer to sue him.

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