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Journal articles on the topic 'Judicial review'

Author: Grafiati

Published: 4 June 2021

Last updated: 30 July 2024

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1

Langille, Brian A. "Judicial Review, Judicial Revisionism and Judicial Responsibility." Revue générale de droit 17, no. 1-2 (May 1, 2019): 169–216. http://dx.doi.org/10.7202/1059325ar.

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Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.

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2

Pandit, Piyush. "Judicial Review and its Distinction with Appeal." International Journal For Multidisciplinary Research 04, no. 04 (2022): 76–85. http://dx.doi.org/10.36948/ijfmr.2022.v04i04.007.

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Judicial Review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. The supremacy of the Indian Constitution is maintained in large part by judicial review. Additionally, it aids in preserving the harmony between the state’s three organs so that no law can be passed without being subject to review. Perhaps the most significant advancement in public law in the latter half of this century has been the judicial review of administrative action, and this paper focuses precisely on that. Judiciary review thus seeks to safeguard citizens from the misuse or abuse of authority by any branch of the state. This paper tries to cover the nuances of judicial review, like the grounds of judicial review, the doctrine of ultra vires, writs, and finally, its distinction with an appeal.

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3

Jones, Timothy H. "Judicial review and codification." Legal Studies 20, no. 4 (November 2000): 517–37. http://dx.doi.org/10.1111/j.1748-121x.2000.tb00158.x.

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This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles of judicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles of judicial review, this can best be achieved by leaving the task to the judiciary.

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4

Waluchow, W. J. "Judicial Review." Philosophy Compass 2, no. 2 (March 2007): 258–66. http://dx.doi.org/10.1111/j.1747-9991.2006.00056.x.

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5

Gunther, Gerald. "Judicial review." Society 24, no. 1 (November 1986): 18–23. http://dx.doi.org/10.1007/bf02695932.

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6

Orth, John W., and Tony Smith. "Judicial Review." Foreign Affairs 80, no. 3 (2001): 152. http://dx.doi.org/10.2307/20050215.

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7

Rusu, Mihaela. "Judicial review." Eximia 12 (October 13, 2023): 276–98. http://dx.doi.org/10.47577/eximia.v12i1.365.

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Individual freedom, together with the security of the person, are values to which the fundamental law of the State grants a character of inviolability. This recognition of the significance of value has led to the establishment in the Constitution of general points in which one can deviate from the principle of inviolability of freedom: nature of preventive measure, duration, competent judicial body. The constitutional principle stated is known at the level of law in Article 5 of the European Convention on Human Rights, in order to ensure a uniform level of interpretation of the legal norms regarding any restriction of the freedom of the individual. The right to liberty – as proclaimed in Article 5 of the Convention concerns, of course, the physical freedom of the person, and the stated purpose of protection is to ensure that no human being can be deprived of this right. Despite these views, the post-December criminal procedure legislation has failed to harmonise with the European spirit nor to fully satisfy the principles resulting from the case-law of the Strasbourg Court. It took a major legislative invention to bring back to normality the provisions contained in the Criminal Procedure Code and the enforcement laws and to show that Romania respects its arrogant international obligations in the field of criminal procedure law. The legislator itself noted, in justifying the revision of the legal norms (substantive and procedural), that the amendments aimed to ensure a unitary protection of the freedoms guaranteed by the Constitution and international legal instruments, to streamline the criminal process and, at the same time, the fair conduct of judicial proceedings for all participants in the criminal process. As a method of governing state power, coercion has priority, conviction having an auxiliary role, but it is ubiquitous. Any state-organized society has a coercive force, varying only the forms of coercion, its intensity, and the relations between coercion and conviction.

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8

Serau Junior, Marco Aurélio, and Isabel Ceccon Iantas. "Judicial review." Revista da Faculdade de Direito da Universidade Federal de Uberlândia 50, no. 2 (July 12, 2023): 333–53. http://dx.doi.org/10.14393/rfadir-50.2.2022.65622.333-353.

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A pandemia de COVID-19 trouxe a necessidade de reconfiguração do mundo do trabalho, a fim de adequá-lo às novas necessidades decorrentes da crise sanitária, sem que ocorresse a paralisação total das atividades laborativas. Dentre as alternativas legisladas, a Lei nº 14.151/2021 impôs o afastamento imediato das mulheres gestantes das atividades presenciais, sem prejuízo de sua remuneração. Tendo em vista as diversas lacunas deixadas por esta norma, o Poder Judiciário foi provocado a rever determinados pontos. Dessa forma, em um primeiro momento, analisam-se as leis de caráter emergencial para contextualizar a urgência de criação de proteções à classe trabalhadora diante da pandemia. Em seguida, através de levantamento bibliográfico-documental, reuniram-se decisões judiciais que debatem os efeitos da Lei nº 14.151/2021 e, posteriormente, as soluções trazidas pela Lei nº 14.311/2022. Assim, por meio da metodologia analítico-argumentativo, demonstram-se os posicionamentos do Poder Judiciário diante da aplicabilidade da nova legislação. Por fim, debate-se o instituto judicial review dentro do contexto de jurisprudência de crise criada em razão da pandemia.

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9

Jain, Nilanjana. "Judicial Power: From Judicial Review to Judicial Overreach." Indian Journal of Public Administration 56, no. 2 (April 2010): 331–42. http://dx.doi.org/10.1177/0019556120100211.

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10

Shehu, Ajepe Taiwo. "Judicial Review And Judicial Supremacy: A Paradigm of Constitutionalism in Nigeria." International and Comparative Law Review 11, no. 1 (June 1, 2011): 45–75. http://dx.doi.org/10.1515/iclr-2016-0095.

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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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11

Alkhaldi, Inas. "Towards a National Strategy for Judicial Accountability: A Critical Review in Jordan." International Journal of Private Law and International Arbitration 1, no. 1 (2022): 25–29. http://dx.doi.org/10.54216/ijplia.010103.

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This paper examines the complex relationship between judicial accountability and judicial independence. In order to provide a framework for good governance in the Jordanian judiciary by identifying its main features and shortcomings in its work. The paper describes mechanisms for achieving accountability through various methods of judicial appointment and removal. But more important than these approaches, she says, is the idea of ensuring judicial accountability by insisting that judges are accountable to the law. The experience of the judiciary in Jordan over the past decades has clearly shown that the judicial administration needs a strategic vision based on efficiency, accountability, and integrity. The paper addresses in detail the challenges of judicial administration that need to be addressed through the implementation of a viable national strategy for judicial accountability

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12

Radovanović, Snežana. "Judicial review: Contemporary approach." Arhiv za pravne i drustvene nauke 118, no. 2 (2023): 73–90. http://dx.doi.org/10.5937/adpn2302073r.

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Contemporary global society is highly polarizated. Minority societes seriously endangere civilised achievements, like principles of democratic society and goverments of law are. Such societies resort to force their decisions breaching, by this, fundamental human rights and civilised achivements, very often. In such circumstances, judicial review gains significance and actuality, as a way to avoid social conflicts and to protect the interests of majority, as well. The institution of judical review has its roots in parliamentary (political) control, but there are opinions that such a control of constitutionality and legality was under strong influence of political parties. The second way of such control, having its roots in political control as well, was highly developed through experience of State Council (administrative court) and Constitutional Council in France, competent for timely control and removal of any kind of illegality before the law has been passed, unlike later control. This is why this kind of control is widely spread all over the Europe and in other legal systems, as well. The third way of control of constitutionality and legality is through the competences of judicial power, by ordinary courts, like in USA, or by special courts (constitutional courts). This way of control is also widely spread due to authority and speciality of the court as an institution, and due to its objectivity, also. Above all, this way of control of constitutionality and legality is guaranteed by citizens ( public), who take part in active evaluation of such a control.

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13

Sinani, Blerton. "Global Patterns of Constitutional Judicial Review Systems: Two Major Models of Constitutional Judicial Review in the World." Juridical Tribune - Review of Comparative and International Law 14, no. 1 (March 25, 2024): 156–73. http://dx.doi.org/10.62768/tbj/2024/14/1/10.

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Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models. Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models.

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14

Wicaksono, Dian Agung, and Faiz Rahman. "Influencing or Intervention? Impact of Constitutional Court Decisions on the Supreme Court in Indonesia." Constitutional Review 8, no. 2 (December 30, 2022): 260. http://dx.doi.org/10.31078/consrev823.

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The third amendment of Indonesia’s 1945 Constitution, conducted in 2001, had significant implications for the nation’s judiciary. It transformed the judiciary from a single to a dual structure. Consequently, there are two apexes of the judiciary: the Supreme Court and the Constitutional Court. Furthermore, the establishment of the Constitutional Court divided judicial review authority between the two apex courts. The Constitutional Court can review laws against the Constitution, while the Supreme Court has the power to review whether regulations, made under laws, contradict such laws. Although the Indonesian Constitution provides explicit delineations over the absolute competence of judicial review, the division of judicial review has often triggered tension between the two courts. The Constitution allows the Supreme Court to have additional authorities granted by laws. On the other hand, the Constitutional Court has the power to review any law against the Constitution, including laws related to the Supreme Court. This article seeks to answer the important question of whether the Constitutional Court could influence or intervene in the Supreme Court through judicial review. The authors argue that the duality of judicial review authority unintentionally causes an imbalance in the functional relationship between the two apexes of the judiciary. The main reason is that the Constitutional Court can influence or intervene in the Supreme Court through constitutional review authority. The authors examine two essential aspects of this: (1) the functional implications of duality of judicial review authority; and (2) the implementation of the Constitutional Court’s authority in reviewing laws, especially those closely related to the Supreme Court’s authorities. Various cases are examined to illustrate how the Constitutional Court could directly or indirectly influence the Supreme Courts’ authorities. The Constitutional Court, however, often seems to ‘play safe’ to maintain the judiciary’s imbalanced relationship caused by the dualism of judicial review authority.

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15

Bar-Siman-Tov, Ittai. "Semiprocedural Judicial Review." Legisprudence 6, no. 3 (December 2012): 271–300. http://dx.doi.org/10.5235/17521467.6.3.271.

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16

Langford, Malcolm. "Why Judicial Review?" Oslo Law Review 3, no. 01 (March 7, 2017): 36–85. http://dx.doi.org/10.5617/oslaw2351.

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17

Rawlings, R. "Modelling Judicial Review." Current Legal Problems 61, no. 1 (January 1, 2008): 95–123. http://dx.doi.org/10.1093/clp/61.1.95.

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18

Kapadia, Amit. "Experiencing Judicial Review." Judicial Review 13, no. 3 (January 2008): 191–92. http://dx.doi.org/10.1080/10854681.2008.11426567.

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19

Mills, Alistair. "Reconstructing judicial review." Judicial Review 22, no. 3 (July 3, 2017): 326–28. http://dx.doi.org/10.1080/10854681.2017.1368181.

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20

Graber, Mark A. "CONSTRUCTING JUDICIAL REVIEW." Annual Review of Political Science 8, no. 1 (June 15, 2005): 425–51. http://dx.doi.org/10.1146/annurev.polisci.8.082103.104905.

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21

Phang, Joshua. "Comparative Judicial Review." International Journal of Constitutional Law 17, no. 2 (April 2019): 721–25. http://dx.doi.org/10.1093/icon/moz045.

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22

Itoh, Hiroshi. "Judicial Review and Judicial Activism in Japan." Law and Contemporary Problems 53, no. 1 (1990): 169. http://dx.doi.org/10.2307/1191835.

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23

Faqir, Khan, and Imtiaz Ali. "The State of Judicial Review in 1973 Constitution of Pakistancc." Global Legal Studies Review V, Winter 2020 (March 30, 2020): 22–28. http://dx.doi.org/10.31703/glsr.2020(v-i).04.

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The aim of this paper is to highlight the power of judicial review in the 1973 constitution of Pakistan. The three organ of the government the executive, judiciary and legislature are working in such a way that each organ is functioning in its sphere. The functions and activities may not be disturbed by each other. There is a mechanism in the 1973 constitution of Pakistan of judicial review. In this way the judiciary has some check on the other branches of the government. Under the 1973 constitution, the judiciary has certain powers to control the executive and legislative branches of the government. In this way judiciary is playing a key role in Pakistan. The paper is an attempt to highlight the process of judicial review in the 1973 constitution of Pakistan and its role in constitutional history in Pakistan.

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24

Robottom, James. "Book Review: Criminal Judicial Review." Judicial Review 20, no. 4 (October 2, 2015): 221–22. http://dx.doi.org/10.1080/10854681.2015.1110363.

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25

Holloway, Ian. "Book Review: Judicial Review Redux." Federal Law Review 24, no. 2 (June 1996): 391–96. http://dx.doi.org/10.1177/0067205x9602400209.

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26

Rumingsih, Ratna. "Judicial Review Di Mahkamah Agung." JATISWARA 26, no. 2 (October 10, 2017): 71–87. http://dx.doi.org/10.29303/jtsw.v26i2.13.

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In Indonesia, the legal arrangements concerning judicial review into a matter that seriously debated since the founding fathers talked about the constitution that will apply when Indonesia has been independent. Whether to include or not judicial review in its constitution. The Supreme Court has the authority to test the material only to the laws and regulations under the legislation, Article 31 of Law No. 14 of 1985 on the Supreme Court and Article 26 of Law No. 14 of 1970 Law No. jo. 31 of 1999 on the provision on the Fundamentals of Judicial Power. The right test is materially against the law is an authority given to the judiciary to examine whether a regulation does not conflict with higher regulations. This authority is given to the Supreme Court so that regulations made by the legislature and executive can be tested whether or not in accordance with the rules is higher. The authority of the Supreme Court in a right to test the material against the legislation is limited to the regulations under the statute.

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27

Fauzan, Ahmad, Ayon Diniyanto, and Abdul Hamid. "Regulation Arrangement through The Judicial Power: The Challenges of Adding the Authority of The Constitutional Court and The Supreme Court." Journal of Law and Legal Reform 3, no. 3 (July 31, 2022): 403–30. http://dx.doi.org/10.15294/jllr.v3i3.58317.

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Disharmony and regulation arrangement is one of the problems in Indonesia that has not been completely resolved. Efforts have been made by the government and various parties. But in reality, disharmony and regulation arrangement are still a problem in Indonesia. There needs to be an out of the box solution, one of which involves the judicial power to organize regulations. The researchers in this article have two problem formulations, namely (1) how is the arrangement of regulations through judicial power from the theoretical aspect? and (2) how is the arrangement of regulations through the Constitutional Court and the Supreme Court to realize a synchronized and harmonious simplification of regulations? First, regulatory arrangements can be made by the judiciary through instruments and processes called judicial review. Theoretically, judicial review can be used as an instrument and a process for structuring regulations so that they are synchronous and harmonious. In Indonesia, a judicial review has been applied to the authority of the Constitutional Court and the Supreme Court. This means that theoretically, regulatory arrangements can be made by the judiciary, in this case the Constitutional Court and the Supreme Court. Second, the judicial review carried out in the context of structuring regulations must be comprehensive on all types of laws and regulations and systematically tiered. Judicial review can also be done horizontally and vertically.

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Amir, Farah, Aas Muhammad, and Junaid Jan. "JUDICIAL ACTIVISM AT THE COST OF SEPARATION OF POWER IN PAKISTAN: A COMPARISON OF JUSTICE IFTIKHAR CHAUDHRY AND JUSTICE SAQIB NISAR’S ERA." Pakistan Journal of Social Research 04, no. 03 (September 30, 2022): 589–98. http://dx.doi.org/10.52567/pjsr.v4i03.748.

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The study deals with the significant role of judicial activism in different eras in Pakistan. It examines the role of judicial institutions in damaging the democratic culture of the country. Since the independence of Pakistan, frequent military interventions were validated by the Superior Judiciary of Pakistan. The study discussed these landmark cases which dented the doctrine of Separation of Power in the county. The concept of judicial review has been originated and developed in Britain, and later reached the US in Marbury v. Madison. The history of Pakistan is marred by several instances of Judicial Activism, in which the jurisdiction of the judiciary encroached upon the domain of legislature and executive. In this study, the activism of populist Judges, Justice Iftikhar Chaurdhty and Justice Saqib Nisar has been compared. Their Judicial actions have been discussed in which the domain of the executive has been compromised. The populist actions of Judges dent the independence of the Judiciary and lead to judicial impartiality, as in several cases, different verdicts are observed in the same nature cases. The study concluded by establishing the link between Judicial activism and Separation of powers, as all organs of the states have constitutional limits to work within, The researchers also proposed some judicial reforms, that will maintain the sanctity of the Doctrine of Separation of Power while exercising Judicial Activism. Keywords: Judicial Activism, Separation of Power, Judicial Review in Pakistan, Judicial Reforms.

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29

Craig, Paul. "Ultra Vires and the Foundations of Judicial Review." Cambridge Law Journal 57, no. 1 (March 1998): 63–90. http://dx.doi.org/10.1017/s0008197300134397.

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There is a growing literature concerning the role of the ultra vires doctrine and its place within administrative law. For some the doctrine is the central principle of administrative law, without which judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial intervention, and at worst a device which allows the judiciary to conceal the real justifications for developments in judicial review. Christopher Forsyth falls into the former camp. He has written a vigorous defence of the ultra vires principle, contending that “it remains vital to the developed law of judicial review”. The purpose of this article is to contribute to the debate on this issue by putting the opposing view. The article will be divided into four sections.

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30

K. Koradhanyamath, Vijayalakshmi, and Sandeep C. Desai. "JUDICIAL ACTIVISM AND OVERREACH IN INDIA." International Journal of Advanced Research 11, no. 07 (July 31, 2023): 1070–78. http://dx.doi.org/10.21474/ijar01/17318.

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The researcher has worked on the Judicial Activism & overreach in India,This new epitope is exploring Indian Judiciary,Judicial Review,Art.32 and 226 of constitution,PIL,Substantive due process and Art.21 of the Indian constitution,Legislationby the Judicial Activism to overreach.

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Cicchillo, Richard. "The Conseil Constitutionnel and Judicial Review." Tocqueville Review 12 (December 1991): 61–82. http://dx.doi.org/10.3138/ttr.12.61.

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For Americans, long accustomed to judicial review of the law, the traditional absence of a similar system of constitutional control in France comes as a surprise. Closer examination however, reveals that the French politico-historico-judicial tradition inherited from the Ancien Régime and the Revolution of 1789 is deeply opposed to the development of "government by the judges." Why did the Revolution react against the judiciary? How has the idea of constitutional control evolved in modern France? What are the possible sources of legitimacy for an institution (the Conseil constitutionnel) and a concept (judicial review) cut off from the sanction of tradition? What is the future of the Conseil?

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32

HARBO, TOR-INGE. "Introducing Procedural Proportionality Review in European Law." Leiden Journal of International Law 30, no. 1 (December 13, 2016): 25–47. http://dx.doi.org/10.1017/s0922156516000662.

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AbstractProportionality review has emerged as a multi-purpose, best-practice standard for conflict resolution, and has for this reason been embraced by most constitutional systems worldwide. It is, however, difficult to escape the fact that proportionality review opens up room for judicial discretion. In European Union law, as well as European Convention on Human Rights law, this discretion has provided an activist judiciary with a most powerful tool for facilitating European integration through judicial adjudication. In a number of recent cases, this approach has been criticized. The critique raised reaches beyond the application of the proportionality principle in concrete cases. It also encompasses a critique of the proportionality principle as such, at least the conventional interpretation of the proportionality principle. This, in turn, raises questions concerning the concept of European law, its constitutional quest and even its very legitimacy. In this article the author discusses the legal and political implications of these challenges and proposes a revival of political power at the expense of judicial power. To this effect, the author introduces procedural proportionality review. Procedural proportionality review secures judicial deference, although not judicial abdication, in politically controversial and democratically legitimate cases.

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33

Helmi, Muhammad Ishar. "Penyelesaian Satu Atap Perkara Judicial Review Di Mahkamah Konstitusi." SALAM: Jurnal Sosial dan Budaya Syar-i 6, no. 1 (February 5, 2019): 97–112. http://dx.doi.org/10.15408/sjsbs.v6i1.10551.

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Abstract.After the integration of the judiciary, the Supreme Court has a very large responsibility which previously only managed judicial techniques (examining, adjudicating and deciding cases) and administration at the Supreme Court level, but after that the Supreme Court had to manage judicial and organizational techniques, administration , and the finance in the Supreme Court and the Judicial Agency below is supplemented by the authority of judicial review of legislation under the Act. However, with unification, cassation and authority judicial review can lead to accumulation of cases in the Supreme Court, so that this is contrary to the principle of fast justice and low costs and legal certainty will be ruled out. In addition, cases of judicial review at the Supreme Court also exclude the principle of audi et alteram partem, namely the statement heard by the parties in the trial, while the proceedings in the Supreme Court do not adhere to the principle as in the Constitutional Court which is open to the public.Keywords: Judicial Review, Audi et Alteram Partem, Constitutional Court. Abstrak.Setelah adanya penyatuatapan lembaga peradilan, Mahkamah Agung memiliki tanggung jawab yang sangat besar yang sebelumnya hanya mengelola teknis yudisial (memeriksa, mengadili, dan memutus perkara) dan administrasi di tingkat Mahkamah Agung, akan tetapi setelah itu Mahkamah Agung harus mengelola teknis yudisial dan organisasi, administrasi, serta finansial di Mahkamah Agung dan Badan Peradilan di bawahnya ditambah lagi dengan kewenangan judicial review peraturan perundang-undangan di bawah Undang-Undang. Namun, dengan penyatuatapan, kasasi dan kewenagan judicial review dapat mengakibatkan menumpuknya perkara di Mahkamah Agung, sehingga hal tersebut bertentangan dengan asas peradilan cepat dan biaya ringan serta kepastian hukum akan dikesampingkan. Selain itu, perkara judicial review di Mahkamah Agung juga mengenyampingkan prinsip audi et alteram partem yakni keterangan didengarkan oleh para pihak di dalam persidangan, sedangkan proses persidangan dalam Mahkamah Agung tidak menganut prinsip seperti di Mahkamah Konstitusi yang bersifat terbuka untuk umum. Kata Kunci: Judicial Review, Audi et Alteram Partem, Mahkamah Konstitusi

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34

Waheedi, Salma. "Constitutional Courts in Arab Gulf States." Al-Abhath 70, no. 1-2 (August 30, 2022): 215–48. http://dx.doi.org/10.1163/18115586-70010108.

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This chapter explores constitutional review in the two GCC states that have developed judicial bodies empowered to conduct judicial review: Kuwait and Bahrain. The chapter begins by describing the constitutional frameworks of Kuwait and Bahrain and the main features of their judicial review models, embodied in their respective constitutional court laws and other legislation pertaining to the judiciary. It then moves to an examination of the legal and institutional designs that enable or limit the independent exercise of judicial oversight by these constitutional courts. Finally, the chapter presents an analysis of constitutional rulings that illustrate the broad features of each court’s jurisprudence. It concludes with a reflection on lingering political and structural challenges to their full exercise of independent constitutional review in both states.

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Salman, Radian, Sukardi Sukardi, and Mohammad Syaiful Aris. "JUDICIAL ACTIVISM OR SELF-RESTRAINT : SOME INSIGHT INTO THE INDONESIAN CONSTITUTIONAL COURT." Yuridika 33, no. 1 (February 8, 2018): 145. http://dx.doi.org/10.20473/ydk.v33i1.7279.

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The Constitutional Court of Republic of Indonesia is centralized judicial review institution which implements a posteriori and abstract control. Constitutional court decision often politically sensitive and involve important issues. On the one hand handing down strong decisions that uphold important constitutional principles can bring great benefits to citizens and can strengthen support for democracy but on the other hand, strong role of the court in judicial review tends to encroach increasingly on the territory of the law making institution. This article examines the decision of constitutional court in the framework of a tension between constitutionalism and democracy, especially from theoretical or conceptual approach. As result of examining its decisions, Indonesian Constitutional Court may reflect two characters; judicial activism as characterized by acting as law-maker and using policy in judicial decisions and/ or judicial self-restraint. Recent Indonesian experience shows that judicial review of legislation is not a simply of judicial control over law-making institution, as it brings tension in the context of power relations in the scheme of separation of power. Relationship between the court and legislature, in respective of judicial review, will culminate in the philosophy of the judiciary. However, as constitutionalism and democracy are virtue, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

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Melero de la Torre, Mariano C. "Constitucionalismo débil = Weak-form judicial review." EUNOMÍA. Revista en Cultura de la Legalidad 13 (September 29, 2017): 198. http://dx.doi.org/10.20318/eunomia.2017.3814.

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Resumen: Se suele denominar constitucionalismo “fuerte” al tipo de justicia constitucional predominante después de la segunda gran posguerra, el cual se caracteriza por otorga a los jueces (o a un tribunal especializado) el poder para inaplicar y/o invalidar aquellas leyes que los tribunales consideran contrarias a su interpretación de los derechos protegidos, pudiendo el legislador revocar o modificar las determinaciones judiciales únicamente mediante las mayorías cualificadas que se incluyen en un proceso formal de reforma constitucional. En esta entrada se presentan y discuten varias formas de constitucionalismo “débil”, cuyo rasgo distintivo común consiste en tratar de asegurar la primacía de los derechos básicos sobre el resto del ordenamiento jurídico (incluso mediante su “atrincheramiento” formal), sin asumir la supremacía de los jueces constitucionales en su interpretación. La discusión girará en torno a cuál es el significado preciso de la “debilitación” de los jueces constitucionales y, en consecuencia, cuál debería considerarse la forma más deseable para su articulación institucional.Palabras clave: Supremacía judicial, constitucionalismo débil, revisión judicial basada en derechos, deferencia debida.Abstract: The kind of constitutional justice which has been globally dominant since the end of the Second World War is usually termed ‘strong’ constitutionalism. It gives judges (or a specialized tribunal) the power to strike down legislation that they consider incompatible with their interpretation of those rights and, simultaneously, allows the legislature to override those judicial determinations only by gaining the qualified majorities included in a formal amending process. This entry expounds and discusses some ‘weak’ forms of judicial review, whose common distinctive character is aiming to ensure the supremacy of the basic rights over the rest of the legal system (even with their formal “entrenchment”), without assuming the judicial supremacy in their interpretation. The discussion will revolve around the precise sense of the “weakening” of the courts in a rights-based constitutional review, and which institutional design should be considered its most desirable form.Keywords: Judicial supremacy, weak-form judicial review, rights-based judicial review, due deference

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Medawatte, Danushka S. "Grasping at Straws: Judicial Review of Legislation in Sri Lanka." ICL Journal 13, no. 3 (February 25, 2020): 281–306. http://dx.doi.org/10.1515/icl-2019-0002.

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AbstractIn this paper, I attempt to examine the evolution of judicial review of legislation in Sri Lanka with a view to better understanding how it has impacted the democratic fabric and constitutional matrix of Sri Lanka. The impact that judicial review of legislation has had on rights jurisprudence, enhancement of democracy, prevention of persecution against selected groups are analysed in this paper in relation to the Ceylon Constitutional Order in Council of 1946 (‘Soulbury’ Constitution) and the two autochthonous constitutions of Sri Lanka of 1972 and 1978. The first part of the paper comprises of a descriptive analysis of judicial review of legislation under the three Constitutions. This is expected to perform a gap filling function in respect of the lacuna that exists in Sri Lankan legal literature in relation to the assessment of the trends pertaining to judicial review of legislation in Sri Lanka. In the second part of the paper, I have analysed decided cases of Sri Lanka to explore how the judiciary has responded to legislative and executive power, and has given up or maintained judicial independence. In this respect, I have also attempted to explore whether the judiciary has unduly engaged in restraint thereby impeding its own independence. The third part of the paper evaluates the differences in technique and stance the judiciary has adopted when reviewing draft enactments of the national legislature and when reviewing draft or enacted statutes of Provincial Councils. From a comparative constitutional perspective, this assessment is expected to provide the background that is essential in understanding the island nation’s current constitutional discourse, transitional justice process, and its approach to human rights.

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Urinboevich, Dilshod Aripov. "The Role Of The Institution Of Judicial Review In Ensuring The Independence Of The Judiciary." American Journal of Political Science Law and Criminology 03, no. 06 (June 12, 2021): 67–73. http://dx.doi.org/10.37547/tajpslc/volume03issue06-10.

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This article discusses the role of the institute of judicial review in ensuring the independence of the judiciary; its importance in ensuring the rights and freedoms of citizens; its differences from fair trial; its types and forms of implementation; its subjects and objects; its purpose and content; its characteristics of execution through legal and disciplinary norms; its functions in law enforcement, regulation, organizational maintenance, education; as well as its prospects in strengthening the independence of the judiciary from other branches of government.

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Beagent, Jamie. "Funding for Judicial Review." Judicial Review 18, no. 2 (June 24, 2013): 143–52. http://dx.doi.org/10.5235/10854681.18.2.143.

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Basten, John. "Judicial Review: Recent Trends." Federal Law Review 29, no. 3 (September 2001): 365–90. http://dx.doi.org/10.22145/flr.29.3.3.

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Shapiro, Martin. "Judicial Review in France." Tocqueville Review 12 (December 1991): 3–19. http://dx.doi.org/10.3138/ttr.12.3.

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Although the matter I am about to take up might normally be relegated to a footnote, it is so important that I prefer to present it in the text as an introduction. Alec Stone is a Ph.D. candidate at the University of Washington completing a dissertation on the Conseil Constitutionnel. During a year in which I was teaching in Paris we conferred a number of times about the dissertation and, subsequent to the return of both of us to the States, I have become a sort of unofficial dissertation advisor.

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Friedman, Barry. "Dialogue and Judicial Review." Michigan Law Review 91, no. 4 (February 1993): 577. http://dx.doi.org/10.2307/1289700.

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Vinx, Lars. "REPUBLICANISM AND JUDICIAL REVIEW." University of Toronto Law Journal 59, no. 4 (October 2009): 591–97. http://dx.doi.org/10.3138/utlj.59.4.591.

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STERETT, SUSAN. "Judicial Review in Britain." Comparative Political Studies 26, no. 4 (January 1994): 421–42. http://dx.doi.org/10.1177/0010414094026004002.

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Britain does not have a written constitution, which provides for a common assessment that it has no constitutional law. However, it actually instead provides a limiting case for considering the influence of courts and law in governance. For the courts have been involved in modifying both central and local government programs through statutory interpretation. The modifications that the courts have brought about have meant that the government has to take legal rules and courts into account in designing programs. The current limits on what the courts do have been part of the provocation for a movement in favor of a bill of rights in Britain.

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Dua, Bhagwan D., and Vijay Lakshmi Dudeja. "Judicial Review in India." Pacific Affairs 62, no. 4 (1989): 564. http://dx.doi.org/10.2307/2759695.

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Garland, Merrick B. "Deregulation and Judicial Review." Harvard Law Review 98, no. 3 (January 1985): 505. http://dx.doi.org/10.2307/1340869.

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Halliday, Simon. "Judicial Review in Scotland." Judicial Review 1, no. 4 (December 1996): 247–48. http://dx.doi.org/10.1080/10854681.1996.11426913.

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Meszaros, George, Lee Bridges, and Maurice Sunkin. "Judicial Review in Perspective." Judicial Review 2, no. 1 (March 1997): 51–53. http://dx.doi.org/10.1080/10854681.1997.11426932.

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Evans, Paul D., and Jennan A. Ambikapathy. "Judicial Review in Australia." Judicial Review 6, no. 3 (September 2001): 188–95. http://dx.doi.org/10.1080/10854681.2001.11427181.

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Fordham, Michael. "Judicial Review Cheat Sheet." Judicial Review 8, no. 3 (September 2003): 131–37. http://dx.doi.org/10.1080/10854681.2003.11427261.

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