scholarly journals China's Evolution from Socialist Legality: The Expansion in the Role of Judges and the Redress of Grievances

2021 ◽  
Vol 15 (1) ◽  
pp. 52
Author(s):  
Zia Akhtar
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Interest Litigation ◽  
Administrative Reforms ◽  
Independent Judiciary ◽  
Judicial Administration ◽  
New Framework

The Chinese state implemented a conscious transfer to a market economy after 1977 when the Four Modernisations were inaugurated and the new Constitution promulgated in 1982 raised the possibility for the separation of powers. The new framework introduced judicial review into the structure of the legal system that was to provide redress of grievances from mal administration. The transition to a new leadership in 2011 allowed the National Peoples Congress to enact administrative reforms, and further amendments to the Chinese Constitution in 2018 have promulgated the Judges Law. The judicial reforms promote the values of an independent judiciary and there is an effective machinery of justice which promotes judicial review. This paper argues that the centralisation of power by the Communist Party does not preclude the functioning of judicial administration that conforms to rule of law and an emerging trend of public interest litigation and participatory justice.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

scholarly journals Who guards the guardians?

2012 ◽  
Vol 18 (2) ◽  
pp. 14 ◽  
Author(s):  
Duncan Bloy
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
General Public ◽  
Separation Of Powers ◽  
Freedom Of Speech ◽  
Missed Opportunities ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
Fundamental Part ◽  
The Press

The United Kingdom’s Leveson Inquiry has been the hottest free show in town since it began taking evidence in November 2011 until the first phase of the Inquiry concluded on 24 July 2012. During that time, the general public has been exposed to a tsunami of information from the great and the good in Britain, which raised questions not only about journalism practices and ethics but the separation of powers and the rule of law. The importance to any democracy of an independent judiciary cannot be overestimated. Sir Brian Leveson began the inquiry by posing the question: Who guards the guardians? He stressed that the concept of the freedom of the press was a fundamental part of any democracy and that he had no desire to stifle freedom of speech in Britain. This article reflects on missed opportunities and considers the future for press regulation in Britain. It also makes the point that irrespective of whatever new regime is established, it is time for proprietors, editors and journalists to stand up for responsible, public interest journalism and only then will there be an outside chance that the public’s faith in mainstream journalism will be restored.

Part IV Independent Constitutional Institutions, 15 The Public Prosecutor and the Rule of Law in Anglophone Africa

2016 ◽  
Author(s):  
Jowell Jeffrey
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
The Law ◽  
Individual Decisions

This chapter examines the role of the public prosecutor in Anglophone Africa, in the light of two constitutional principles: the separation of powers and the rule of law. It considers the extent to which the prosecutor’s role, and his individual decisions, ought to be separated from ‘policy’ or ‘party-political’, or otherwise ‘partisan’ considerations. How ‘objective’ should (or can) he be? The chapter also considers to what extent the prosecutor’s constitutional role and institutional functions require him to be insulated from judicial review. In the context of government lawyers acting as guardians of the rule of law, the chapter looks at the extent of the prosecutor’s discretion to enforce and not to enforce the law. Finally, it asks whether there may be ways to structure his discretion in the interest of the rule of law.

scholarly journals In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law

2009 ◽  
Vol 22 (1) ◽  
pp. 187-203 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Public Reason ◽  
Separation Of Powers ◽  
Political Judgment ◽  
The Rule Of Law ◽  
The Public ◽  
The Common ◽  
Fundamental Law

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis.

2021 ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Judicial Independence ◽  
The Rule Of Law ◽  
European Dimension

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis is not a typical celebratory book offered to the dedicatee for an academic jubilee. The studies offered to Professor Mirosław Wyrzykowski present the readers with essays analysing the most pressing problems of modern constitutionalism in its European dimension. The primary themes of the book are topics dear to Wyrzykowski: the rule of law, human rights, the crooked paths of European constitutionalism, and last, but not least, one that binds them all: judicial independence and judicial review, as well as the role of the courts in upkeeping the rule of law.

Allies or Subversives? Adjudication and Democracy

2018 ◽  
pp. 79-114
Author(s):  
Sandra Fredman
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Decision Makers ◽  
Democratic Accountability ◽  
Public Interest Litigation

This chapter addresses the argument that human rights should be not be the responsibility of courts, but of the legislature. Instead of regarding courts and the legislature as mutually exclusive, however, it asks whether we can create a role for justiciable human rights which reinforces democracy. Section II considers democratic objections to justiciable human rights, and canvasses potential responses. Section III examines three ways to reconcile the role of courts with democracy: representation-reinforcing, dialogic, and deliberative theories. It concludes that courts should enhance the democratic accountability of decision-makers by insisting on a deliberative justification for the interpretation or limitation of rights. Section IV turns to objections based on lack of judicial competence to address complex, polycentric issues raised by human rights. Using the example of India’s public interest litigation, it examines ways in which the court structure might be adapted to address these concerns. Section V considers remedies and implementation.

scholarly journals The Role of Public Interest Litigation in the Achievement of Sustainable Waste Management in Ethiopia

2018 ◽  
Vol 10 (12) ◽  
pp. 4735 ◽  
Author(s):  
Merhatbeb Gebregiorgs
Keyword(s):  
Waste Management ◽  
Public Interest ◽  
Command And Control ◽  
Civil Procedure ◽  
Environmental Tax ◽  
Sustainable Waste Management ◽  
Public Interest Litigation ◽  
Procedure Code ◽  
And Control

This research assessed the role of public interest litigation in the achievement of sustainable waste management in the Addis Ababa Administration (AAA) of Ethiopia. It employed a single country case-oriented comparative research design, and data triangulation was used to establish the validity of the findings. The research first shows Ethiopia’s commitment to sustainable waste management, implementing environmental tax and the command-and-control instruments of the polluter-pays principle and public interest litigation within the context of environmental justice. Secondly, it shows that public interest litigation is one of the innovative techniques in the struggle against waste mismanagement across all legal systems. Thirdly, it demonstrates the potential role of public interest litigation in Ethiopia in encouraging the federal and regional environmental protection and management organs to implement environmental tax and command-and-control instruments. Fourthly, it uncovers that public interest litigation is not fully compatible with the Civil Procedure Code of Ethiopia. Fifthly, it shows the failure of the judiciary system of Ethiopia to accommodate environmental courts and tribunals that flexibly and innovatively adopt public interest litigation. Sixthly, it reveals that, in Ethiopia, the scope of public interest standing is highly restrictive for Civil Society Organizations (CSO). Finally, it implies that the legal viability and administrative feasibility of environmental public interest litigation in Ethiopia is in its infancy, and its crystallization is partly contingent on the cautious review of the Civil Procedure Code and CSO laws and on greening the judiciary system.

scholarly journals THE PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEED-INGS AS A GUARANTEE OF ENSURING THE EFFECTIVENESS OF LEGAL PROTECTION. SOME REMARKS

2017 ◽  
Vol 28 (1) ◽  
pp. 9-22
Author(s):  
Joanna Misztal-Konecka
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Legal Protection ◽  
Great Caution ◽  
The Rule Of Law ◽  
The Public ◽  
Civil Proceedings ◽  
The Moment ◽  
Civil Matter

The role of the prosecutor in the legal system is traditionally perceived in the context of performing tasks relating to the prosecution of offences and upholding the rule of law. It is worth mentioning, however, that pursuant to Article 7 sentence 1 of the Code of Civil Procedure the prosecutor may petition to institute proceedings in any civil matter as well as participate in any pending proceedings if he considers his presence necessary to protect the rule of law, citizens’ rights or social interest. While the broad competence range of the prosecutor in civil proceedings has been assessed with high criticism in the literature on numerous occasions, it is with great caution that one should view possible tendencies towards exclusion of the prosecutor as an attendant of proceedings, without affiliation to either party, when the public interest calls for their participation. Especially in the cases where the court notifies the prosecutor of the need to participate in proceedings, one ought to conclude that it is the moment when the principle of effective legal protection becomes most fully realized through equalizing the litigious position of the parties and prevention of the occurrence of a defect which might invalidate the proceedings. The author postulates transforming notification of the need to participate in proceedings served on the prosecutor into summons for attending it.

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