scholarly journals Evolution and Exercise of the Power of Judicial Review of Executive Actions in Pakistan

2020 ◽  
Vol 3 (1) ◽  
pp. 1-10
Author(s):  
Rao Imran Habib
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Good Governance ◽  
Research Work ◽  
Fundamental Rights ◽  
State Institutions ◽  
The People ◽  
Political Interests ◽  
The Supreme Court ◽  
One Step

In the modern democracies the protection of fundamental rights has gained immense importance. The fundamental rights are guaranteed by the constitutions of democratic states. The courts are empowered through the power of judicial review to protect fundamental rights against any violations of these. The concept of judicial review of executive actions emerged from the concept that the powerful executive can jeopardize the rights of the people for their political interests and there should be an independent forum to check the abuses of the human rights by the executive. In the modern era the power of judicial review has proceeded one step further as, in addition to the violation of fundamental rights, it has started examining the issues of good governance and disputes between state organs. Pakistan inherited the idea of judicial review of executive actions from the supervisory jurisdiction of English Courts to issue prerogative writs. Subsequently, Pakistan specifically incorporated the judicial review powers in the 1962 Constitution. The provincial high courts and the Supreme Court are entrusted with the power of judicial review; however, the Supreme Court can adjudicate upon matters of fundamental rights if they involve public importance. This research work examines the importance of judicial review of executive actions for the protections of fundamental rights. Then the evolution and exercise of judicial review of executive actions by the higher courts in Pakistan is analysed. This study finds that the superior courts in Pakistan have actively used this power to protect fundamental rights but in their drive to protect fundamental rights sometimes they have encroached into the jurisdiction of the other state institutions.

scholarly journals MENAKAR PROGRESIFITAS LEMBAGA PERADILAN DALAM MEWUJUDKAN DEMOKRASI BERINTEGRITAS

2018 ◽  
Vol 12 (2) ◽  
pp. 2102-2117
Author(s):  
Alda Rifada Rizqi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Legal Positivism ◽  
The People ◽  
The Supreme Court ◽  
The Will ◽  
The Law ◽  
Corrupt Behavior

Democracy with integrity will be realized if carried out in accordance with the will of the people as holders of sovereignty, the KPU (Komisi Pemilihan Umum) as the election organizer has the authority to make regulations that support a better democracy. KPU (Komisi Pemilihan Umum) Regulation No. 20 of 2018 as evidence that the KPU is committed to participating in preventing corrupt behavior. It was considered to have been considered as an effort to protect the interests of the people, but the regulation was submitted to a judicial review at the Supreme Court. Then, based on legal-formal considerations and based on the legal positivism of the Supreme Court, the request for the test is granted. The decision distanced itself from progressive legal values that justified the denial of what was regulated in legislation in order to put forward the values of public justice, because basically the law was made to fulfill human interests, accommodating the will of the people for the sake of order.

scholarly journals KAJIAN YURIDIS TERHADAP PENEGASAN HIEARAKI PERATURAN PERUNDANG-UNDANGAN DI INDONESIA DALAM PERSPEKTIF STUFEN THEORIE

2017 ◽  
Vol 9 (2) ◽  
pp. 95
Author(s):  
Muhammad Yusrizal Adi Syaputra
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Judicial Review ◽  
House Of Representatives ◽  
Constitutional Court ◽  
State Institutions ◽  
Binding Force ◽  
The Supreme Court ◽  
Legal Uncertainty

Rule lower against the rules of higher then lower regulation it can test the material (judicial review) to be canceled entirely or partially canceled. The assertion of hierarchy intended to prevent overlap between legislation that could give rise to legal uncertainty. Position regulations set by the People's Consultative Assembly (MPR) House of Representatives (DPR), the Regional Representatives Council (DPD), the Supreme Court (MA), the Constitutional Court (MK), the Supreme Audit Agency (BPK), Commission Judicial (KY) , Bank Indonesia (BI), the Minister, the Agency, Organization, or commissions, in the Indonesian legal system recognized by Act No. 12 of 2011 either were born because of higher regulatory mandate and within the scope and authority of the minister. Thus, no doubt that the regulations set by state institutions, have binding force that must be obeyed by the parties set forth therein. While the Regulations issued policy also recognized as an Freies Ermessen in the execution of its duties and functions.<br /><br />

scholarly journals When “Creeping Jurisdiction” Goes Awry: The Social Action Litigation to Ban Surrogacy

2018 ◽  
Author(s):  
Sital Kalantry
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
Social Action ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Constitutional Democracy ◽  
Judicial Appointments ◽  
The Social ◽  
The Supreme Court ◽  
Scholarly Attention

Significant scholarly attention has focused on the strong role played by the Supreme Court in the Indian constitutional democracy. Exercising its powers of judicial review, the Court will invalidate legislation if determines it to be in violation of the constitution. In the judicial appointments case, for example, it invalidated legislation that would have reformed the judicial appointments system. When there is no law, but the Court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did this in the internationally famous Vishaka case, in which it created guidelines on sexual harassment.

scholarly journals Suplicatorio y política: Praxis parlamentaria y claves del debate doctrinal sobre el control jurisdiccional de la potestad denegatoria de los suplicatorios // Request to waive the Parliamentary Immunity and politics. Parliamentary praxis and keys issues of the doctrinal debate on the judicial review of the parliamentary power of denial the requests

2018 ◽  
Vol 1 (103) ◽  
pp. 381
Author(s):  
Kayamba Tshitshi Ndouba
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Existing Problems ◽  
Spanish Constitution ◽  
The Supreme Court ◽  
Parliamentary Procedure ◽  
The Right ◽  
Politics And Law

Resumen:El presente artículo aborda algunos problemas entre política y derecho que genera la decisión parlamentaria en la concesión o denegación de los suplicatorios. Por ello, analiza la praxis de los suplicatorios tramitados por el Congreso de los diputados y el Senado hasta la fecha, poniendo énfasis en la doctrina emanada de las decisiones adoptadas por las comisiones parlamentarias competentes. Para profundizar en la interacción entre suplicatorio, política y derecho, el artículo indaga en los pasos cualitativos y saltos prominentes de la evolución de la jurisprudencia constitucional sobre los límites de la facultad de las Cámaras para conceder o denegar el suplicatorio. Recaba y sistematiza el tratamiento académico de los puntos clave del debate emanado de estos sucesivos pronunciamientos del TC: las implicaciones de esta jurisprudencia en relación a los postulados constitucionales de independencia y ordenación de los poderes del Estado, las definiciones de criterios jurídicos que han de inspirar y guiar a las Cámaras para autorizar o denegar el suplicatorio, la concreción del modelo y la estructura de ponderación aplicables en los casos de colisión de dos derechos fundamentales (en este caso, los arts. 23 y 24 de la Constitución española [CE]). Summary:I. Praxis of the Parliamentary Procedure for the Waiver of Immunity. II. The Request to Waive the Parliamentary Immunity Before the Constitutional Court. Issues With Undeniable Constitutional Significance. III. The Constitutional Court and the Judicial Review of the Requests to Waive the Parliamentary Immunity. 1. Interna corporis acta and fundamental rights. 2. «Trial of opportunity» and the formal «requirement of a statement of reasons». 3. The degree of providing an adequate statement of reasons in the denial court’s decision. 4. The question of weighing up different values against one another: fundamental rights and the Parliament members’ prerogatives. IV. The Doctrinal Debate on the Constitutional Court’s Jurisprudence. 1. Emptying the parliamentarian immunity and the issue of «checks and balance» of State’s constitutional powers.2. Opposing the parliamentary immunity and the right of judicial action: the issue of preferential treatment. Concluding: Judicial Review or Political Review? Abstract:This article addresses the existing problems generated by the parliamentary decision in the granting or denial of requests made by the Supreme Court to the Parliament, in order to remove an MP’s parliamentary immunity, so that (s)he can be prosecuted. Such problems are studied both from the perspective of law and of political science. To this end, this paper analyzes and updates the research done to date about the parliamentary praxis on this issue, highlighting the doctrine which emanates from the decisions adopted by the competent parliamentary committees. In order to understand well the interaction between the praxis, politics and law, this paper also examines the most prominent changes and milestones in the evolution of the constitutional case law on the limits of the Parliament’s capacity to grant or to deny the Supreme Court request asking Parliament to remove an MP’s parliamentary immunity so that (s)he can be prosecuted. For this purpose, the paper systematizes the key points of the academic debate concerning the successive decisions of the Constitutional court: the repercussions of this jurisprudence vis-à-vis the constitutional postulates of separation and independence of State powers, the legal criteria that such postulates must inspire and in order to guide the Parliament in its decision to grant or deny the petition, the concretization of the model and the balance needed in cases of collision of two fundamental rights (in this case, articles 23 and 24 of the Spanish Constitution).

Garanties Constitutionnelles Relatives a L'individu Face à la Justice dans les États D'afrique Francophone

1971 ◽  
Vol 15 (2) ◽  
pp. 113-131
Author(s):  
Thierry Verhelst
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
African Countries ◽  
The Supreme Court ◽  
Exceptions And Limitations ◽  
Nulla Poena Sine Lege

SUMMARYFrancophone African constitutions generally make provision for fundamental rights. In criminal proceedings, the principle nulla poena sine lege is expressly incorporated in some, but not all, the constitutions. All the constitutions legislate against arbitrary arrest and detention; some legislate against brutality and torture. But these rights are subject to numerous exceptions and limitations.African countries generally distinguish between constitutional provisions and ordinary laws; the former are supreme, and may only be amended by special procedures. Constitutionality of legislation is generally judged in the francophone states by the Supreme Court or a special tribunal (this procedure differs from that in the parent French and Belgian constitutions). Within each Supreme Court there are normally several chambers or divisions: judicial review of the constitutionality of legislation is generally the business of a constitutional chamber of the Supreme Court. There is often a political element in the nomination of the persons to serve on such a special constitutional court.

scholarly journals The Supreme Court of India: A People’s Court?

2019 ◽  
Author(s):  
Sital Kalantry
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Human Beings ◽  
Common People ◽  
Supreme Court Of India ◽  
The People ◽  
The Supreme Court ◽  
The Rich ◽  
To Come

The Supreme Court of India has long been thought of as a court for the common people. This perception is rooted in the Indian constitution, which grants the Supreme Court original jurisdiction to hear cases alleging violation of fundamental rights. The Court has also embraced this vision of its role, and conceives of itself as an institution of “last resort for the oppressed and bewildered.” In a judgment from 1987, it expressly notes that it gives greater access to certain marginalized groups:this Court has always regarded the poor and the disadvantaged as entitled to preferential consideration than the rich and the affluent, the businessmen and the industrialists. The reason is that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. . . . The majority of the people of our country are subjected to this denial of access to justice and, overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. This court has always, therefore, regarded it as its duty to come to the rescue of these deprived and vulnerable sections of Indian humanity in order to help them realise their economic and social entitlements and to bring to an end their oppression and exploitation.The Court’s self-conscious pro-poor discursion is most evident in its public interest jurisprudence, through which the Court removed many procedural barriers to accessing the Court; and assumed wide ranging remedial powers to ameliorate a range of socio-economic injustices.

scholarly journals Public Interest Litigation: A Conceptual Framework

2010 ◽  
pp. 85-89
Author(s):  
Manas Ranjan Samantaray ◽  
Mritunjay Sharma
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Special Role ◽  
Public Interest Litigation ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Government

Public interest litigation (PIL) has a vital role in the civil justice system in that it could achieve those objectives which could hardly be achieved through conventional private litigation.PIL, for instance, offers a ladder to justice to disadvantaged sections of society, provides an avenue to enforce diffused or collective rights, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable. This article will show, with reference to the Indian experience, that PIL could achieve these important objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfil private interests, settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-today basis or enter the legitimate domain of the executive and legislature. The challenge for states, therefore, is to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this balance could be to build in economic (dis)incentives in PIL and also confine it primarily to those cases where access to justice is undermined by some kind of disability. Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Court’s directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

‘Using’ Crisis of Governance as an Opportunity for ‘Re-invention’: Why the Supreme Court of India Took To Hearing Public Interest Litigations—A Case Study

2020 ◽  
Vol 7 (2) ◽  
pp. 215-223
Author(s):  
Subrata Biswas
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Positive Role ◽  
Indian Politics ◽  
Supreme Court Of India ◽  
The People ◽  
The Supreme Court ◽  
The Right

What do the different State organs do when they face a crisis? Do the suffering institutions successfully re-invent themselves or is it that some other institution uses the crisis to find an ‘opportunity’ to re-invent itself? Can one’s crisis be another’s opportunity? This case-study analyses how the Supreme Court of India (hereinafter SCI) reinvented itself in a bid to further the cause of good governance in the country ever since emergency had been clamped on the nation towards the end of 1970s. Surely there has been a crisis of governance in India, caused by the pathetic performance of both the legislature and the executive. It has led to myriad problems in both social and political arenas. If left unaddressed, Indian people might have turned more violent than they already are and that could have perpetrated a failure of democracy in the country. But the SCI has successfully played a positive role in this regard. If the other institutions have failed the people, the Supreme Court has championed their cause. The world’s largest democracy stands saved until now. But is it wholly the judges’ heartfelt concern for the people that has prompted the Supreme Court to function in this fashion? Did anything go wrong during the emergency? Why is it that it has been more and more active ever since the emergency ended? And why is it that there has been an exponential growth in public interest litigations (hereinafter PILs) in the Supreme Court even though it cannot handle so many cases because of infrastructural paucities? Situating itself in the specific context of PILs entertained by the SCI and supporting it with the theoretical inputs of the so-called ‘principal-agent framework’, this essay argues that there has been a competition (i.e., between the court and the elected politicians) for ‘occupying’ more space in the domain of governance since the inception of the Constitution and it is only the Supreme Court that got the right ‘opportunity’ to achieve its objective in the wake of crisis in governance that became so visible in Indian politics ever since the fag-end of the 1970s. While the court tried other instruments earlier in its game plan vis-a-vis the elected politicians, the crisis situation since the end of the 1970s made it ‘invent’ a new tool in the form of PILs capable of safeguarding the interests of the people and insulating them against the mindless functioning of multiple state agencies. But how far can the SCI (hereinafter SCI) proceed with this new tool? Is there a risk of ‘overusing’ it? Does the court not have its own limitations in this regard, too? What should the Supreme Court do in order to avert a fresh ‘crisis’?

Indonesia

2021 ◽  
pp. 251-266
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Checks And Balances ◽  
American Perspective ◽  
The People ◽  
The Supreme Court

This chapter highlights the origins and growth of Indonesian judicial review. Indonesia today is a constitutional democracy that has attained surprising success in eliminating hyper-presidentialism by implementing important checks and balances on presidential power; by separating executive, legislative, and judicial power; and by attaining rapidly an astonishing amount of decentralization since 1998. That degree of checks and balances and of decentralization has undoubtedly made Indonesians much freer than they were under President Suharto’s dictatorship. The Indonesian Constitutional Court seems to function well and enjoys the confidence of the people. Looked at from an American perspective, however, Indonesia is a constitutional democracy, which does not yet fully protect freedom of expression, freedom of religion, or economic freedoms to the extent that those freedoms are protected by the U.S. Supreme Court. Indonesia’s Bill of Rights and its system of judicial review originated for rights from wrongs reasons, because of borrowing, and because power is sufficiently divided in Indonesia, as a result of the separation of powers and federalism, so that there is political space in which the Supreme Court can operate.

scholarly journals Judicial Review And Judicial Supremacy: A Paradigm of Constitutionalism in Nigeria

2011 ◽  
Vol 11 (1) ◽  
pp. 45-75
Author(s):  
Ajepe Taiwo Shehu
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Judicial Power ◽  
The Political ◽  
Natural Consequence ◽  
The People ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
The Government

Abstract This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. Th is is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”

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