scholarly journals Le contrôle judiciaire comme technique de participation des citoyens aux choix énergétiques

2005 ◽  
Vol 24 (4) ◽  
pp. 977-1000
Author(s):  
Denis Lemieux
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Case Law ◽  
Recent Case ◽  
Decision Making Process ◽  
Subsequent Stage ◽  
Political Decisions ◽  
Energy Exploitation

The purpose of this paper is to show how judicial review has been used in the last ten years as a participatory technique by citizens and groups in the decision making process of administrative and political decisions dealing with energy exploitation and use. In a first part, the author makes the point that judicial review is unadopted to that purpose. A second part reviews the recent case law. That review brings the author to the conclusion that the judicial forum was, by and large, an inappropriate one as far as participation was the avowed goal of plaintiffs and petitioners. But, in the last part of the paper, the author affirms that despite all these short-comings, the use of judicial review was often positive not as a technique of participation but as one which did facilitate participation at a subsequent stage, due to the wide publicity and comments, judicial and extrajudicial, surrounding the proceedings.

scholarly journals The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

2021 ◽  
pp. 1-32
Author(s):  
Benjamin Joshua Ong
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
General Principle ◽  
Case Law ◽  
Administrative Law ◽  
Decision Making Process ◽  
Rough Approximation ◽  
Executive Decision Making ◽  
The Law

Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognised in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

scholarly journals Internalizing Contestation in Process-Based Judicial Review

2019 ◽  
Vol 20 (8) ◽  
pp. 1167-1181
Author(s):  
Laura M. Henderson
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Decision Making Process ◽  
Constitutional Theory ◽  
Judicial Decision ◽  
Constituent Power ◽  
Judicial Decision Making ◽  
European Stability Mechanism

AbstractThe cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

Necessity as a Defence to Murder: An Anglo-Canadian Perspective

2014 ◽  
Vol 78 (4) ◽  
pp. 341-362 ◽  
Author(s):  
Birju Kotecha
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Comparative Perspective ◽  
Decision Making Process ◽  
Moral Conflicts ◽  
Canadian Perspective ◽  
English Law ◽  
The Relationship ◽  
Theoretical Foundations

The article explores the formulation of the criminal defence of necessity in the context of murder cases. The discussion will provide a medium through which to critique necessity's theoretical foundations which are classified either as one of justification or excuse. It is this highly problematic distinction which will be exposed as not only having been overlooked in case law but is futile where necessity is considered as providing a murder defence. Such a theoretical dichotomy does not reflect the competing rights and values present in the case law, and nor does it align with the decision-making process taken by judges in cases where they resolve such moral conflicts. What is present is a contextual form of necessity that frames and recognises the circumstances the actors are placed in. The analysis argues for a recategorisation of necessity into a narrow fact-driven category beyond the abstract duality of justification or excuse. To support the view of a situation-led approach, necessity is exposed as omitting a critical doctrinal element; that of the imminence of harm within a broader recognition that the situation presents an emergency. Adopting a comparative perspective, the article analyses why the emphasis placed on the imminence of harm found in Canadian jurisprudence ought to be reflected in English law. The rationale for this is to fully reflect the agony of the circumstances that underpin the scope of necessity in murder situations and to ensure that actors in such tragic situations have their rights secured as far as possible, before allowing the defence to apply. One of the final implications of the article is a reconsideration of the relationship between necessity and duress of circumstances arguing that a reappraisal of their convergence is required. The article's argument leaves the juridical precept that duress is not available as a defence to murder on an insecure foundation and in need of judicial re-evaluation.

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.

13. The nature of judicial review

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is considered.

scholarly journals The Protection of Personal and Property Rights Act 1988 – Update and Reflections

2013 ◽  
Vol 44 (3/4) ◽  
pp. 439
Author(s):  
Bill Atkin
Keyword(s):  
Decision Making ◽  
Property Rights ◽  
Case Law ◽  
Recent Case ◽  
25Th Anniversary ◽  
The Future

This article coincides with the 25th anniversary of the passage of the Protection of Personal and Property Rights Act 1988. The Act provides mechanisms for decision-making on behalf of people who lack capacity to make decisions for themselves. It is of increasing importance as the population ages. The article looks at the origins of the legislation and its contemporary focus. Recent case law is explored and some challenges for the future outlined. While the need for the Act remains, it may be timely for a fuller review to be undertaken.

scholarly journals Vedoucí zaměstnanec a výklad zákonných ustanovení contra Verba Legis

AUC IURIDICA ◽  
2021 ◽  
Vol 67 (3) ◽  
pp. 49-55
Author(s):  
Vojtěch Hanzal ◽  
Jakub Tomšej
Keyword(s):  
Decision Making ◽  
Czech Republic ◽  
Case Law ◽  
Judicial System ◽  
Recent Case ◽  
Constitutional Court ◽  
The Third ◽  
Fourth Part ◽  
Legal Term ◽  
The Way

The article deals with the way legislation defines the term “senior employee” and how the interpretation is influenced by recent case law of the Constitutional Court. The first part of the article focuses on an analysis of the legal term “senior employee” in accordance with the present legislation as well as relevant judicature and doctrine. The second part of the article is based on a description of the way the Constitutional Court deviated from the interpretation of mentioned term and its aspects which were until then, considered defining. The article continues in the third section with the presentation of other examples of decision making contra verba legis throughout the judicial system of Czech Republic. The aforementioned sections are followed by the fourth part, which consists of a conclusion of the previous content and brings deliberations de lege ferenda.

The Practice and Case Law of Israel in Matters Related to International Law

1998 ◽  
Vol 32 (2) ◽  
pp. 355-392
Author(s):  
Rotem M. Giladi
Keyword(s):  
United States ◽  
Decision Making ◽  
International Law ◽  
Case Law ◽  
The United States ◽  
Decision Making Process ◽  
The Public ◽  
Legal Questions ◽  
South Lebanon ◽  
Monitoring Group

For the last two years, a five-party mechanism consisting of delegations of Israel, the United States, France, Syria and Lebanon, charged with implementing an Israeli-Lebanese understanding concerning South Lebanon has been in operation. Away from the public eye, this forum has thus far held around fifty sessions, each of which concluded with the producing of an agreed Report. Despite its limited powers and narrowly defined mandate, the significance of this forum cannot be ignored; its existence and the mode of its operations also gives rise to several important legal questions.This review will start by describing the historical and legal circumstances leading up to the April 1996 Understanding and the establishment of the Israel-Lebanon Monitoring Group. Thereafter, the operation of the Monitoring Group, its composition, functions, procedure and decision-making process will be presented. Then I will discuss the major legal questions arising from the existence and operation of the Monitoring Group. The documents relative to the work of the Monitoring Group are annexed to this review.

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