Elite dimension: Court structures and process

The 21st century saw the rapid development of the administration of the nations of the world. With the development, it is essential to ensure that administrator entrusted with the administration of the country perform its duties in accordance with the rule of law. It must not act arbitrarily. Discretionary power if given to the administrator, it is limited. This is to guarantee that administrator in performing its duties would not infringe rights of an individual or community, especially fundamental rights. To make certain that this is achieved, an effective mechanism for the protection of rights, especially human or fundamental rights in state administration is needed. Judicial review is one of the effective mechanism to supervise and control action of the administrator. This mechanism is available in Administrative Law. Under the instrument, grounds of judicial review is made available to review action of the administrator. Currently, there are two streams of judicial review: Administrative Review and Constitutional Review. The former is a non-right based review of administrator’s power founded on the traditional common law using Wednesbury objective test or CCSU grounds not involving violation of fundamental and human right and the procedures. Meanwhile, the latter is a right-based review involving the exercise of administrative powers that violate the constitutional right of an individual or community, particularly, fundamental rights. The traditional common law, nevertheless, are inadequate in addressing review of administrative action involving violation of fundamental rights. For that reasons constitutional review as another stream in judicial review was developed. This was illustrated looking into the development in United Kingdom, India, Malaysia, South Africa and Hong Kong. With the expansion, mentioned the common law countries are capable of providing a more comprehensive and meaningful protection to an individual or community against unlawful act of the administrator that violates rights, especially human and fundamental rights. Consequently, state integrity is strengthen and be more accountable to the community. Hence, state can develop administration that is sound, and efficient in human, natural, economic and financial management. The proper enforcement of human rights will promote political and socio-economic stability, provide legal certainty and it encourages investors to invest in the country.

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The court is tasked with checking the legality of government action, which is mainly done through the process known as judicial review. Judicial review is a special form of court process that calls the executive to account for its exercise of power. This chapter discusses the history of judicial review; the grounds of review; the judicial review of delegated legislation; judicial review and the constitution; the difference between judicial review and appeal; the role of the courts and the Human Rights Act 1998; the judicial review procedure; and the extent to which judicial review can act as a check on executive power.

Skepticism About Judicial Review - A Perspective from the United States

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review, unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.

This collection of articles analyses the problems with judicial review of trade remedy determinations in ten user countries - Australia, Brazil, Canada, China, the European Union, India, Indonesia, Mexico, South Africa, and the United States - and is a follow-up to similar studies in 2004 and 2007 respectively. Each article succinctly describes the major problems with judicial review in their jurisdictions covering the period from 2001 to 2010 with an aim to examine the effectiveness of judicial review (and/or, where applicable, review by an administrative tribunal) of trade remedy determinations in the light of Article 13 of the WTO Anti-Dumping Agreement. Two problems have been underlined: (1) the excessively long duration of the judicial review procedures; and (2) the considerable deference given to the administrative authorities on substantive issues by the courts typically on account of the technicality of the anti-dumping determinations and the absence of expert judges versed with trade remedy laws. These two problems have deeply impacted the effectiveness of the judicial review systems in most jurisdictions investigated and the situation is far from what is envisaged in Article 13 of the ADA. Both problems are related to the absence of specialized courts and chambers with judges trained in trade remedy laws. In contrast, the United States and India - the only two countries that have specialized courts - have effective judicial review systems. For the ten year period covered by this study, the ten countries investigated can be divided into two groups as regards the recourse to judicial review of anti-dumping determinations. One group comprises the European Union, India, Mexico and the United States where judicial review of anti-dumping determinations has been frequent. The second group comprises the remaining countries namely Australia, Brazil, Canada, China, Indonesia and South Africa where judicial reviews have been more limited. In fact the judicial review systems for trade remedy determinations in countries such as China and Indonesia are in the early stages of development.

This collection of articles analyses the problems with judicial review of trade remedy determinations in ten user countries - Australia, Brazil, Canada, China, the European Union, India, Indonesia, Mexico, South Africa, and the United States - and is a follow-up to similar studies in 2004 and 2007 respectively. Each article succinctly describes the major problems with judicial review in their jurisdictions covering the period from 2001 to 2010 with an aim to examine the effectiveness of judicial review (and/or, where applicable, review by an administrative tribunal) of trade remedy determinations in the light of Article 13 of the WTO Anti-Dumping Agreement. Two problems have been underlined: (1) the excessively long duration of the judicial review procedures; and (2) the considerable deference given to the administrative authorities on substantive issues by the courts typically on account of the technicality of the anti-dumping determinations and the absence of expert judges versed with trade remedy laws. These two problems have deeply impacted the effectiveness of the judicial review systems in most jurisdictions investigated and the situation is far from what is envisaged in Article 13 of the ADA. Both problems are related to the absence of specialized courts and chambers with judges trained in trade remedy laws. In contrast, the United States and India - the only two countries that have specialized courts - have effective judicial review systems. For the ten year period covered by this study, the ten countries investigated can be divided into two groups as regards the recourse to judicial review of anti-dumping determinations. One group comprises the European Union, India, Mexico and the United States where judicial review of anti-dumping determinations has been frequent. The second group comprises the remaining countries namely Australia, Brazil, Canada, China, Indonesia and South Africa where judicial reviews have been more limited. In fact the judicial review systems for trade remedy determinations in countries such as China and Indonesia are in the early stages of development.

This collection of articles analyses the problems with judicial review of trade remedy determinations in ten user countries - Australia, Brazil, Canada, China, the European Union, India, Indonesia, Mexico, South Africa, and the United States - and is a follow-up to similar studies in 2004 and 2007 respectively. Each article succinctly describes the major problems with judicial review in their jurisdictions covering the period from 2001 to 2010 with an aim to examine the effectiveness of judicial review (and/or, where applicable, review by an administrative tribunal) of trade remedy determinations in the light of Article 13 of the WTO Anti-Dumping Agreement. Two problems have been underlined: (1) the excessively long duration of the judicial review procedures; and (2) the considerable deference given to the administrative authorities on substantive issues by the courts typically on account of the technicality of the anti-dumping determinations and the absence of expert judges versed with trade remedy laws. These two problems have deeply impacted the effectiveness of the judicial review systems in most jurisdictions investigated and the situation is far from what is envisaged in Article 13 of the ADA. Both problems are related to the absence of specialized courts and chambers with judges trained in trade remedy laws. In contrast, the United States and India - the only two countries that have specialized courts - have effective judicial review systems. For the ten year period covered by this study, the ten countries investigated can be divided into two groups as regards the recourse to judicial review of anti-dumping determinations. One group comprises the European Union, India, Mexico and the United States where judicial review of anti-dumping determinations has been frequent. The second group comprises the remaining countries namely Australia, Brazil, Canada, China, Indonesia and South Africa where judicial reviews have been more limited. In fact the judicial review systems for trade remedy determinations in countries such as China and Indonesia are in the early stages of development.

Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and democratic mechanisms. The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general. Criticizing the ‘juridification’ of human rights through the transferring of the prime responsibility for defining human rights violations to courts and advocating the greater ‘politicization’ of human rights responsibilities through such measures as enhanced Parliamentary scrutiny of existing and proposed legislation, a group of twenty-four human rights scholars present a variety of perspectives on the disappointing human rights outcomes of recent institutional developments and consider the prospects of reviving the moral force and political implications of human rights values. Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today. Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.

review still exists in Europe, but there is a rise of constitutional review connected to concrete cases. Section 2.2 has shown that the constitutional court has not only the abstract review but also constitutional question and the constitutional complaint jurisdictions. The latter two are the main procedures of the constitutional courts and the efficient devices for protecting fundamental rights in Europe. For example, most cases are filed in the Federal Constitutional Court of Germany through the constitutional complaint and constitutional question. The constitutional complaint is first in importance (122,256 cases, with 96.14 % of the total number of cases filed between 1951 and 2000), constitutional question second (3,121 cases, 2.45 %), and abstract review third (140 cases, 0.11 %). According to Antonio La Pergola, the constitutional complaint is one way European constitutional brand of justice has come “nearer to the spirit, if not the technicalities, of the judicial review of the American type.” Thus, constitutional review related to concrete cases tends to dominate not only in countries having the American model, but also in countries whose constitutional courts exercise the constitutional complaint or the constitutional question jurisdictions. The American judicial review is mostly related to concrete cases due to the constitutional requirement of “cases and controversies” as Section 2.1 showed. However, the U.S. courts make the abstract review of constitutionality of statutes before their enforcement and without a concrete case or controversy in a very limited sense. For example, Alec Stone Sweet and Martin Shapiro developed a new argument in which abstract review occurs most often in one of the following two situations in the United States: First, under certain circumstances, plaintiffs may seek declaratory or injunctive relief by a judge, which, if granted, suspends the application of the law in question pending a judicial determination of its constitutionality. Plaintiffs commonly file such requests 66 Sweet, “Why Europe Rejected American Judicial Review,” 2772. 67 Beyme, “The German Constitutional Court in an Uneasy Triangle Between Parliament, Government and the Federal Laender,” 105. 68 Pergola, “Introductory Statement,” 10. 69 For that the most dominant review procedure is constitutional question in Italy, and the Italian judicial review has the hybrid nature of American and European models, which helps to increase the degree of concreteness of the Constitutional Court judgments, see Rolla and Groppi, “Between Politics and the Law: The Development of Constitutional Review in Italy,” 148. Two Models of Constitutional Review 55 immediately after the statute has been signed into law by the appropriate authority. Second, under judicial doctrines developed by the US Supreme Court pursuant to litigation of First Amendment freedoms, plaintiffs may attack a law on its face, called a ‘facial challenge’, and plead the rights of third parties. Sweet and Shapiro call these two situations respectively the doctrine of declaratory or injunctive relief and the doctrine of facial overbreadth and vagueness. The very limited abstract review has developed in American constitutional case law. For their argument, Sweet and Shapiro discussed a decision of the U.S. Supreme Court, which ruled on offensive speech in cyberspace under the American abstract review. In 1995, the U.S. Congress enacted the Communications Decency Act (CDA), which sought to regulate “indecent” and “offensive” expressions (pornography) on the Internet. On February 8 1996, the day President signed the CDA into law, 20 public interest and business groups filed suit in a Federal District Court to prohibit the Federal Government from enforcing two of its key provisions. The plaintiffs claimed that two provisions of CDA violated freedom of expression guaranteed by the First Amendment to the U.S. Constitution, and asked that the court enjoin the law’s application. A district court agreed with the plaintiffs, and issued a preliminary injunction against the enforcement of the challenged provisions. On appeal, the Supreme Court upheld the district court’s ruling, invalidating the law as unconstitutional for facial overbreadth and vagueness. Sweet and Shapiro argued that American case law has developed the doctrine of declaratory or injunctive relief and the doctrine of facial overbreadth and vagueness, both of which make the abstract review of statutes possible at least in a limited sense. The reasoning in the CDA decisions was so abstract that judges developed a judicial construction with hypothetical situations, narratives with abstractions as characters, stand-ins for real people facing challenging dilemmas. Sweet and Shapiro wrote the following: [In this decision], American judges imagined an average ‘speaker’ interested in ‘serious discussion of prison rape, homosexuality, [or] birth control.’ They read the text of the 70 Shapiro and Sweet, On Law, Politics, and Judicialization, 347; These two authors also argue that the U.S. concrete review includes “many abstract counter-currents,” elements of abstract review, because the abstract and the concrete are inseparable. Ibid., 366–373. 71 Reno v. the American Civil Liberties Union. 65 U.S. For the detailed analysis of the abstract review in this decision and abstract reasoning, see Shapiro and Sweet, On Law, Politics, and Judicialization, 353– 358.

In India, human rights entered the juridical discourse not via its enshrinement in statutory law but through judicial decisions, often in judicial review of legislative and executive action. This chapter suggests an account of the politico-legal developments that led to the juridical discourse of human rights in India. It argues that the judiciary’s articulation of human rights has to be seen in the context of an expanding judicial power over parliamentary sovereignty. The chapter employs judicial review as a heuristic to bring forth the politics that underlies these legal developments. It looks at human rights law from the lenses of judicial review in India. Globally, judicial review has become a significant instrument to scrutinise actions and decisions of public authorities for ensuring consistency with constitutional norms and internationally accepted human rights. The Supreme Court of India and the High Courts are entrusted with the power of judicial review over legislative and executive actions.

The European Court of Human Rights’ case law on judicial review in asylum cases is not entirely consistent. However, it can be interpreted as consistent if two presumptions are accepted. First, that, as the Court's role should be subsidiary to that of domestic courts, domestic judicial review should at least be of the same quality and substance as the European Court of Human Rights’ review. Secondly, that the Court distinguishes between arguable and non-arguable cases not just in the context of Article 13 ECHR and of the admissibility of applications, but that this distinction is central to its entire case law about the asylum procedure. This analysis results in a coherent doctrine on deadlines for submitting evidence, the burden of proof, the intensity of judicial review, and suspensive effect. If the Court understands its case law in this way, it can prevent it from becoming, in some respects, a court of first instance.

The Human Rights Act: Ambiguity about Parliamentary Sovereignty

This article discusses the role of costs as a limitation on access to judicial review in the UK. Part I assesses the series of financial hurdles to access currently faced by would-be judicial review claimants, looking in particular at the impact of recent changes to the availability of legal aid funding. Part II argues that affordable access to justice in general is necessary in order to ensure that citizens’ rights will be properly respected by governments; furthermore, access to justice in the judicial review context is fundamental because judicial review offers citizens a way to stand up to the State to protect themselves, and functions as a ‘remedy of last resort’ when all other avenues for relief have been exhausted. Part III looks at the case law of the European Court of Human Rights regarding the extent to which the availability of legal aid funding is essential to the safeguarding of human rights, as well as domestic case law concerning the affordability of access to court, and applies this in the judicial review context. The article argues that the right approach to the granting of legal aid funding is that explained in Airey v Ireland, but that later interpretations, particularly in UK law, have wrongly sought to narrow the principle stated in this case in order to maintain that legal aid is only necessary for claimants in rare, ‘exceptional’ cases.

The international influence of American (or U.S. American) constitutionalism is indisputable. The innovative framework set by the Founding Fathers back in 1787 and the resilient organizations developed thereupon had such a positive impact overseas that they were still the leading global reference 200 years after the Philadelphia Convention. Institutions such as judicial review, federalism, or even presidentialism disseminated alongside American military sway across the most varied settings and soon became unavoidable elements to consider in state-building efforts worldwide. Be it in post-colonial Latin America throughout the nineteenth century, Asia and Western Europe in the aftermath of World War II, or the emerging African nations during the second half of the twentieth century; the United States of America was for a much extended period of time the dominant prototype of a successful constitutional arrangement. Though this once hegemonic influence has somewhat lost momentum within the past couple of decades, American legal institutions enjoy to this day remarkable prestige and continue to impact significantly other systems around the globe. American courts, for instance, are still often referred to as “the most powerful and admired judiciary in the world.” Not only do they still reach more international headlines than any of their colleagues overseas, but also, as cases brought before them continue to drive many aspects of the contemporary legal debate, American judicial decisions are followed closely by foreign legal academia. So, while the new “world favorite” of democratic constitutionalism—the Federal Republic of Germany—is still relatively young and in significant ways a result of its American counterpart, the legal system of the United States is of such tradition and status that even today it takes a great share of the attention from scholars and practitioners around the globe.