Judicial Review and Strategic Behaviour: An Empirical Case Law Analysis of the Belgian Constitutional Court

2020 ◽  
Vol 18 (1) ◽  
pp. 305-308
Author(s):  
Jan Theunis
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Strategic Behaviour

scholarly journals A Commentary: the Inadmissibility of Non-Indonesian Citizens in Judicial Review before the Indonesian Constitutional Court

2018 ◽  
Vol 3 (2) ◽  
pp. 208
Author(s):  
Bayu Mahendra
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Legal Standing ◽  
Review Mechanism ◽  
Legal Consequences

The Constitutional Court of Indonesia, in its judgment No 2-3/PUU—V/2007, ruled that non-Indonesian citizens have no legal standing to file judicial review before the Court. In determining the legal standing, the Court rejected applicants’ constitutional loss which should actually serve as the substantial examination in judicial review but rather addressed this question on the basis of applicant’s citizenship. This inadmissibility ruling, however, raises question on what legal standing actually mean in the context of judicial review. This paper reviews the Court’s consideration in determining legal standing status and examines future legal consequences of such reasoning. By revisiting the substance of legal standing and judicial review derived from the 1945 Constitution, relevant Statutes, Court’s practices and case law, as well as the dissenting opinion of the judges in this case, it is found that the Court overruled the substance to procedural examination on the basis of citizenship and therefore failed to address the actual question of legal standing. This paper concludes that the Court’s reasoning has abandoned the constitutional loss as the very substance of legal standing and to which amounts to immunity of legal standing provision from a judicial review. Consequently, non-Indonesian citizens will never be recognized in judicial review mechanism before the Indonesian Constitutional Court.

scholarly journals Constitutional principles in public administrator's decision-making under the case law of the Supreme Administrative Court of Lithuania

2018 ◽  
Vol 2 (1) ◽  
pp. 109-115
Author(s):  
Ieva Deviatnikovaitė
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Principle ◽  
Family Names ◽  
Administrative Courts ◽  
The Republic

This paper serves few purposes. First, it examines the principles of public administration in Lithuania. Good administration principle is analysed as constitutional principle relying on the case law of the Supreme Administrative Court of Lithuania. Second, it explores impact of the decisions of Constitutional Court of the Republic of Lithuania to the contemporary judicial review of Lithuanian administrative courts. Therefore, one of the latest rulings of the Supreme Administrative Court of Lithuania related to the spelling of names and family names in the passports of citizens of the Republic of Lithuania will be reviewed.

Are Russian Courts Capable of Creating Precedents? Overcoming Inconsistency in Case Law

2013 ◽  
Vol 38 (3-4) ◽  
pp. 341-362 ◽  
Author(s):  
Kirill Koroteev
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Executive Power ◽  
Constitutional Court ◽  
Judicial Decisions ◽  
Judicial Decisionmaking ◽  
Short Period ◽  
The Supreme Court ◽  
Lower Courts ◽  
Russian Law

This article discusses the issue of the consistency of judicial decisions in two of Russia’s highest courts: the Supreme Court and the Higher Arbitrazh Court. The President of the latter has been especially vocal in advocating for the “introduction of the doctrine of precedent into Russian law”. This idea, understood as the power to bind lower courts by judgments in individual cases, has even received support from the RF Constitutional Court. However, this article stresses that before discussing whether there may—or may not—be a place for judicial precedent in Russia, the judgments of the two highest courts must be consistent. We examine one particular issue that lends itself to a number of possible solutions: the judicial review of internal circulars from federal bodies of executive power. The case law of the two courts has been marked by U-turns in dealing with this matter. They sometimes have issued completely different judgments in similar cases over a short period of time, while failing to explain why their rulings differ from earlier judgments. The author of the present article argues that this inconsistency gives witness to a number of fundamental flaws in judicial decisionmaking in Russia and undermines any discourse in support of precedent in Russia.

scholarly journals Friendly Takeover, or: the Power of the ‘First Word’. The German Constitutional Court Embraces the Charter of Fundamental Rights as a Standard of Domestic Judicial Review

2020 ◽  
Vol 16 (2) ◽  
pp. 187-212 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
Gradual Evolution ◽  
Charter Of Fundamental Rights ◽  
German Constitutional Court ◽  
Constitutional Identity

Five decades of interaction between the Bundesverfassungsgericht and the Court of Justice – Reversal of the Solange decisions – Jurisdictional upgrade of the Charter under domestic constitutional law – Continuity of the ultra vires and constitutional identity caveats – Differences between the First and Second Senate in the approach towards EU law – Preliminary references as a new normality – Projection of the experience and doctrinal rigour of the German fundamental rights case law on the European level – ‘Primary’ application of the Grundgesetz as pragmatic guidance – Gradual evolution of overarching standards – Ordinary courts as an institutional counterbalance to the Bundesverfassungsgericht – Insistence on leeway for relative national autonomy in the interpretation and application of the Charter.

Justice Sandile Ngcobo and the Judicial Reinforcement of Intergovernmental Relations in South Africa

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Maropeng Mpya ◽  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
South African ◽  
Judicial Review ◽  
Intergovernmental Relations ◽  
Case Law ◽  
Public Authority ◽  
Constitutional Court ◽  
Chief Justice ◽  
Judicial Reasoning ◽  
Judicial Authority

The importance of co-operative governance is strengthened by the authority vested in the judiciary—to ensure the judicial review of any conduct, rule or law that runs contrary to the prescripts of the envisaged collaborative relations. Of particular significance is the establishment of the Constitutional Court, where retired Chief Justice Ngcobo distinguished himself as an independent thinker, within the limitations of judicial authority, in advancing the principles of co-operative governance. His rich intellect demonstrates an alternative way of arriving at the constitutionalised South African jurisprudence that has spanned twenty-two years of democracy in regulating public authority. This article reviews and provides an account of Justice Ngcobo’s selected case law in the judicial enforcement of the principles of co-operative governance. The objective is to give impetus to the advancement of an unwavering commitment and a well thought-out, futuristic and progressive outlook on the evolution of South African jurisprudence. These were motivated by a zeal to establish his deep-rooted philosophy that informed his thoughts in judicial reasoning. The motivation raises a question that is intended to help determine whether his contribution has shifted the culture of dictatorship of the pre-democratic dispensation to the affirmation of the principles of constitutional supremacy in a way that befits the general populace affected by the different spheres of government.

Constitutional Judicial Review and International Obligations of Criminalization

2021 ◽  
pp. 1-19
Author(s):  
Beatrice I. Bonafè
Keyword(s):  
Criminal Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Obligations ◽  
Constitutional Constraints ◽  
Constitutional Judicial Review ◽  
Law Making

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

Features of Judicial Practice in the Russia as the Basis of Precedent

2020 ◽  
pp. 98-106
Author(s):  
V. V. Levin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Armed Forces ◽  
Case Law ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Law Making

The article is devoted to the analysis of judicial practice as the basis of law-making activity in the Russian Federation, on the basis of which it is possible to create a precedent. Case law in Russia is Advisory in nature and is not mandatory for law enforcement practice. Courts use the signs of case law in their decisions in the reasoned part. Signs of case law is a ruling of the constitutional court of the Russian Federation and regulations of the armed forces of the Russian Federation.

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