scholarly journals Judicial Review of Acts of Congress and the Need for Constitutional Reform

1936 ◽  
Vol 45 (5) ◽  
pp. 816
Author(s):  
Charles Grove Haines
Keyword(s):  
Judicial Review ◽  
Constitutional Reform

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules

2012 ◽  
Vol 25 (1) ◽  
pp. 53-78
Author(s):  
Joel I. Colón Ríos
Keyword(s):  
Judicial Review ◽  
Institutional Arrangement ◽  
Basic Feature ◽  
Constitutional Reform ◽  
Democratic Legitimacy ◽  
Judicial Decision ◽  
Constitutional Review ◽  
The Road ◽  
The People ◽  
Elected Representatives

Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.

scholarly journals Reflexiones en torno al fallido referéndum en Rumanía sobre el matrimonio homosexual = Reflections on the failed same-sex marriage referendum held in Romania

2019 ◽  
pp. 166
Author(s):  
Daniel López Rubio
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Direct Democracy ◽  
Fundamental Rights ◽  
Constitutional Reform ◽  
Same Sex ◽  
Specific Kind ◽  
Same Sex Marriage ◽  
Chamber Of Deputies

Resumen: En octubre de 2018, Rumanía celebró un referéndum sobre la prohibición constitucional de los matrimonios del mismo sexo, que había sido previamente respaldada por amplia mayoría en la Cámara de Diputados y el Senado. La convocatoria de la consulta hizo aflorar las ya habituales críticas hacia la institución referendaria, haciéndose hincapié en la inconveniencia de su empleo para dirimir cuestiones relativas a los derechos e intereses de grupos sociales vulnerables. El presente trabajo analiza, a la luz de la experiencia rumana, estas críticas, exponiéndolas a las contradicciones e interrogantes que generan cuando son planteadas sin mayor precisión. Se intenta, así pues, comparar las virtudes del foro parlamentario y el referéndum como instrumentos de decisión, y se insiste en la necesidad de especificar el tipo concreto de consulta popular empleada en cada caso. Finalmente, se argumenta la conveniencia de preservar los referendos como cauce decisivo en el procedimiento de reforma constitucional, subrayando las complicaciones que sin embargo puede ofrecer de cara a su ulterior revisión jurisdiccional.Palabras clave: referéndum, democracia directa, reforma constitucional, derechos fundamentales, matrimonio homosexual.Abstract: In October 2018, Romania held a referendum on the ban of same-sex marriages, which indeed had got the support of a wide majority in the Chamber of Deputies and the Senate. The call for this referendum generated the usual criticism towards the institution of the referendum itself, that points out its inconvenience when it comes to dealing with issues regarding minorities’ rights. Drawing on the Romanian experience, this paper analyses that criticism by going through the contradictions and questions that arise when it is vaguely expressed. The purpose is to compare the advantages of a parliamentary forum and referendums as decision-making tools and to insist in the need of clarifying the specific kind of popular consultation that is to be used. Finally, the writer argues in favor of preserving referendums as decisive means in the process of constitutional reform, stressing however the drawbacks that may eventually arise in case of a judicial review. Keywords: referendum, direct democracy, constitutional reform, fundamental rights, same-sex marriage.

International Judicial Review

2020 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Judicial Review

Оскарження рішень, дій чи бездіяльності публічної адміністрації як вид гарантії забезпечення надання публічних послуг у судовому порядку

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Бойко
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Public Services ◽  
Legal Regulation ◽  
Scientific Article ◽  
Preliminary Stage ◽  
The Law ◽  
The Moment ◽  
Court Hearing

The scientific article identifies the peculiarities of appealing the decisions, actions or omissions of public administration subjects on the provision of public services at the stage of initiation and preparation for judicial review of an administrative case. The author substantiates the feasibility of improving the legal regulation of the procedure for holding a preliminary hearing before the court hearing of the case. In particular, it is considered expedient to set the terms of the preparatory meeting from the moment of receipt of the administrative claim, as well as to determine the cases when the parties are not reconciled.It is established that the preliminary stage of the court hearing often ends with the conclusion of the preliminary proceedings and the appointment of the case to trial in the field of public services. This is not against the law. However, it should be borne in mind that in accordance with Art. 121 of the CAS of Ukraine such a decision is delivered by the consequences of preparatory proceedings, not the previous court hearing. Obviously, preparatory proceedings are not limited to, and do not always end at, a previous court hearing. Preparation may continue after a preliminary hearing. Therefore, the decision to close the preliminary proceedings and assign the case to trial after the consequences of the previous court hearing can only be made if the judge has taken all the measures necessary to hear the case. If during a previous court hearing in the field of public services, to which all persons involved in the case have arrived, the issues necessary for its consideration have been resolved, then, with the written consent of these persons, a court hearing may be initiated on the same day. In this case, the termination order is also delivered.

Standard of Judicial Review for Election Campaign law

2010 ◽  
Vol 18 (1) ◽  
pp. 243-271 ◽  
Author(s):  
전종익
Keyword(s):  
Judicial Review ◽  
Election Campaign

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.

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