Judicial Review In Japan: A New Perspective

359Aliens — Expulsion of — Judicial Review — The Law of Belgium.

Judicial review is a central feature of India’s constitutional framework, enabling courts to ensure that legislative and executive actions conform to constitutional mandates. This paper examines the role of the Supreme Court of India in strengthening judicial review through its interpretative authority and constitutional jurisprudence. It traces the evolution of judicial review from the Court’s early deferential approach in A.K. Gopalan v. State of Madras to the transformative expansion of rights in Maneka Gandhi v. Union of India and the entrenchment of constitutional limits through the basic structure doctrine in Kesavananda Bharati v. State of Kerala. The study highlights how judicial review has been instrumental in protecting fundamental rights, particularly under Article 21, and in preserving constitutional supremacy against legislative and executive excesses. At the same time, it critically engages with debates on judicial activism, democratic accountability, and separation of powers. The paper argues that while judicial review has significantly strengthened India’s constitutional democracy, its continued legitimacy depends on principled adjudication, institutional restraint, and respect for democratic processes.

Judicial Review - Why the Ministry of Justice Doesn't Get it

English Abstract: Starvation is a terrible way to die. Yet for more than six months now, dozens of the 166 Guantanamo Bay detainees have been refusing food. At its peak, 106 detainees have participated in the hunger strike. By the time of writing these lines, 45 of the strikers are still being forced-fed through gastric tubes inserted into their noses while they are strapped into restraint chairs. All of these strikers have been detained, indefinitely (at least potentially), for security reasons, based on secret intelligence information that was never fully revealed to them. The hunger strike (as well as practices such as force-feeding), raise many moral and legal issues concerning security detentions. A New York Times editorial described the strike as a ‘collective act of despair’, and reported that prisoners on the hunger strike say that they would rather die than remain in the purgatory of indefinite detention. Clearly, the hunger strike is being used by the detainees to contest their indefinite detention, and to bring attention and some sort of oversight to their cases. This paper focuses on the alternative: an effective and independent judicial review process, which might provide oversight, rule of law limitations, and protections to security detainees. Indeed, the US Supreme Court emphasized in the Boumediene case that ‘few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person’. Yet not all security detention regimes are subject to independent judicial review; and among those which are subject to judicial review, different judicial review models have emerged. In a previous study, I demonstrated some of the inherent deficiencies of the Israeli ‘judicial management model,’ including a considerable gap between the rhetoric of a few renowned cases and the actual practice of the Supreme Court in hundreds of under-analyzed decisions. On the one hand – and contrary to the common view of an interventionist court – the study revealed that the Court systematically refrains from issuing release orders, even when clear procedural flaws were documented. On the other hand, the study identified the formation of alternative dispute resolution methods, such as mediation and negotiation, as well as ‘bargaining in the shadow of Court’ dynamics. This chapter presents some of the most important and interesting findings of this study, and analyzes their broader implications concerning judicial review of security detentions in Israel and elsewhere. Some of the findings are compared and contrasted with decisions from other jurisdictions, including the Supreme Court of Canada, and the UK House of Lords, which adopted a different model of judicial review – that of the ‘special advocate’ model. This comparison helps to better understand some of the weaknesses of the judicial management model, in particular the way it undermines participation and the possible implications of this weakness. By combining the reasoning, actual outcomes and ‘behind the scenes’ dynamics, as well as introducing approaches adopted by other courts, this chapter participates in the continuing international debate concerning the impact of schemes of secrecy and confidentiality on the effectiveness of the judicial review process.

One of the subthemes in the delegation debate concerns the importance of judicial review. Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. (1) Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making. (2) Administrative law professors have underscored this point. Professor Kenneth Culp Davis, in his inimitable style, took the theme to the utmost extreme. He argued that what is really significant about the nondelegation doctrine is not that Congress must provide an intelligible principle, but that judicial review is available to make sure that administrative agencies follow the principle. (3) What matters is that someone, somewhere, supplies a standard for the exercise of administrative discretion and that the courts can enforce this standard. (4) It does not really matter where the standard comes from. Congress might supply it, but so too might an agency or even a court. important thing is to have some standard to control discretion, plus judicial review. Court rejected this particular idea in Whitman v. American Trucking Associations. (5) Justice Scalia, writing for the Court, dismissed as internally contradictory the notion that an agency could cure a nondelegation problem by adopting a self-limiting standard. (6) As he explained: The very choice of which portion of the power to exercise--that is to say, the prescription of the standard that Congress had omitted--would itself be an exercise of the forbidden legislative authority. (7) What has been less noticed about American Trucking is that the Court, having interred the self-limiting-standards idea, also omitted the ritual bow to judicial review as an important safeguard against abuses of broad delegations. To be sure, the Court reaffirmed that the question whether a statute violates the nondelegation doctrine is for the courts to decide. (8) And the Court engaged in vigorous judicial review of the agency decision that triggered the nondelegation challenge, holding that the agency's decision was unreasonable. (9) But neither Justice Scalia nor any of the concurring Justices said that the availability of judicial review was itself a relevant element in resolving the delegation challenge. Which leads to my topic: What is the role of judicial review in determining the constitutionality of broad delegations of power in a world in which the intelligible principle doctrine is, for practical purposes, dead? To make this question concrete, let me describe a petition for certiorari recently denied by the Supreme Court in County of El Paso v. Napolitano. (10) petition was filed in December 2008 by the Yale Law School Supreme Court Clinic, of which I am currently a supervisor. Court denied certiorari on June 15, 2009, (11) after the conference relisted the petition seven times. (12) As is usual, the Court gave no explanation for the denial. petition challenged an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), (13) which instructs the Secretary of Homeland Security to build a barrier fence along portions of the border between Mexico and the United States to help control illegal entry into the United States. (14) Congress sought to assure that the fence was built as quickly as possible and, in particular, that this multimillion dollar construction project would not become bogged down in litigation. To achieve this objective, Congress amended IIRIRA in 2005. (15) amended statute, in Section 102(c), delegates authority to the Secretary of Homeland Security to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of [the fence]. …

This is a pre-publication draft of my contribution to a forthcoming collection, Law under a Democratic Constitution:Essays in Honour of Jeffrey Goldsworthy (forthcoming, eds. L.Crawford, P.Emerton, & D.Smith, Hart Publishing, 2019). A persistent concern with constitutional judicial review of legislation is based on its necessary interference with democratic government.Various responses have been made but almost all take for granted the presumption that the decisions of elected legislatures ought to be respected and that any deviation from such decisions requires special justification. I raise some questions about the assumed desirability of democratic decision-making.These questions arise from evidence casting doubt on the competence of average voters, a problem which may have been exacerbated by changes in the way information is transmitted and received. At the same time, constitutional rules and institutions that prevented popular preferences from being translated into public choices have been progressively abandoned. Numerous academic commentators have plausibly challenged the conventional understanding of the function of constitutional judicial review -- i.e. the enforcement of rules entrenched in a governing constitution. They argue that, either intrinsically or as a matter of experience, constitutional judges review state action according to their personal views of the public good. If that characterization is accepted, it is easy to see judicial review as a version of the ancient concept of government. While, historically, that idea was seen as a way to check the power of monarchs, in its modern iteration, judges supply the aristocratic element that guards against dangers inherent in democracy. In the American constitutional system, this means that the judiciary would take over the role that the Senate was expected to take in the designed by the founders. Endorsement of the mixed government picture of constitutional judicial review necessarily involves giving up as impractical the rule of law values of the conventional view. In this respect, it may have more in common with European type judicial review -- in which constitutional tribunals have a deliberately political role in public decision-making -- than with the American model in which such review is just a by-product of the judicial duty to apply governing law. While the view interferes with the directly influence of popular preferences on public policy-making, it maintains a situation whereby persistent and deeply held public opinion is likely to prevail. In that sense, it is consistent with democratic broadly conceived.

Although this book does not adopt the court-centred approach of many administrative lawyers, we have learned a good deal about judicial review in its pages. Consideration of the relationship between law and administration, and the contribution law can make to administration, bears directly on the question of the proper constitutional role of the courts. Intended to produce a more rounded picture of the part played by judicial review, the next chapters look to the dynamics, routings and effects of this form of litigation. This chapter focuses on major institutional developments over the last thirty years and on the procedural devices for rationing access to the system. Chapter 16 considers the make-up of the caseload, the workings of the judicial ‘tool-kit’ of remedies, and the cloudy issues of impact and compliance. What is the value of judicial review read — as the judges are naturally disposed to do — as the ‘apex’ of a pyramid of dispute resolution (see Chapters 10–11)? Is it, as de Smith thought, sporadic and peripheral? We shall discover that, conveniently obscured by the roll-call of leading cases, judicial review in England and Wales has a secret dimension; the expansion of parameters runs alongside a large-scale exclusion of people.

The birth of Law Number 7 of 2017 concerning Elections strengthens the position of the Election Supervisory Body in enforcing election law. In addition to election crimes, other powers he has are taking action and deciding administrative violations, even though the authority is the authority of the State Administrative Court. This study is a combination of library research (library research) and field research (field research) that are descriptive analytical. The approach used is a normative approach. This study attempts to answer two questions; how to settle the election dispute process, and how the electoral dispute law enforcement system in Indonesia. The results showed that the authority to decide on dispute resolution in the electoral process was in Bawaslu whose decision was final and binding, but in practice legal remedies were made to the Administrative Court of Negarab and ended at the Supreme Court through appeals, appeals and judicial review.AbstrakLahirnya Undang-Undang Nomor 7 Tahun 2017 tentang Pemilu menguatkan posisi Badan Pengawas Pemilu dalam menegakkan hukum pemilu. Selain tindak pidana pemilu, kewenangan lain yang dimilikinya adalah menindak dan memutus pelanggaran administrasi, padahal kewenangan tersebut merupakan kewenangan Peradilan Tata Usaha Negara. Penelitian ini merupakan kombinasi dari penelitian kepustakaan (library research) dan penelitian lapangan (field research) yang bersifat deskriptif analitis. Adapun pendekatan yang dipakai adalah pendekatan normatif. Penelitian ini berusaha menjawab dua pertanyaan; bagaimana penyelesaian proses sengketa pemilu, dan bagaimana sistem penegakan hukum sengketa pemilu di Indonesia. Hasil penelitian menunjukkan bahwa kewenangan memutus penyelesaian sengketa proses pemilu berada di Bawaslu yang putusannya bersifat final dan mengikat, akan tetapi pada prakteknya dilakukan upaya hukum ke Pengadilan Tata Usaha Negarabdan berakhir di Mahkamah Agung melalui banding, kasasi dan peninjauan kembali.

Judicial Review: Comparative Study in India and USA

Inconsistency in court decisions on agrarian disputes presents a crucial problem that tests the balance between formal legal certainty and substantive justice. This research aims to conduct an in-depth analysis of the application of the elements of an unlawful act and the dialectic of judicial reasoning (ratio decidendi). The analysis is conducted in the context of an ownership dispute over a 14,000 m² parcel of land in East Kutai. This case traversed four judicial tiers, from the District Court to the Judicial Review at the Supreme Court. Employing a normative legal research method through a case study approach, a comparative-qualitative analysis of each court decision is performed to dissect the legal logic underlying the dynamics of the contradictory verdicts. The findings indicate that the Supreme Court, in its role as the judex juris, ultimately affirmed the superiority of material truth. This truth, proven by actual and good-faith physical possession, was deemed superior to the legal formalism embodied in substantially flawed ownership documents. The substantive-justice-oriented court decision of First Instance was annulled at the formalistic Appeal level, only to be restored by the Supreme Court at the Cassation level and subsequently upheld in the Judicial Review stage. It is concluded that the final decision in this case not only provides concrete legal protection for the good-faith land possessor but also contributes significantly to jurisprudence as an important precedent that reinforces the judiciary’s orientation toward achieving substantive justice in the resolution of agrarian disputes in Indonesia.

The judicialization of politics, or alternatively, politization of the judiciary has been much discussed over the last twenty years. Despite this, the way judges influence fiscal policy outcomes remains, to a large extent, unexplored. This paper attempts, at least partially, to fill this research gap. A judicial (constitutional) review constitutes the central element of the current analysis since it is considered as a key institutional device through which Constitutional (Supreme) Courts intervene in politics, including public finance. Specifically, this paper seeks to investigate empirically whether there is any systematic pattern according to which judges executing judicial review shape fiscal outcomes. The conceptual framework is based on the strategic interaction model and the assumption that the Constitutional Courts reflect public opinion (i.e. the Court as a majoritarian institution). Some preliminary results for a panel of 24 EU countries in the period 1995–2005 suggest that a strong judicial review correlates with a smaller size of government, measured as government income to GDP.

The "countermajoritarian difficulty," first formulated by Alexander Bickel almost fifty years ago, has been a profoundly influential starting point for those who critically examine the relationship between democracy and constitutional judicial review. However, the inadequacies of this framework are manifest. This framework rests, first, on unwarranted empirical assumptions about the "majoritarianism" of legislative action and the "countermajoritarianism" of courts. It also rests on unwarranted theoretical assumptions about the relationship between democracy and majoritarianism. Virtually all sophisticated approaches to democratic theory do not simply equal democracy with majoritarianism, although this is often forgotten when discussing judicial review. Using the "democracy-against-domination" approach, we assess the democratic status of judicial review, and conclude that judicial review has the potential to make a modest and contingent positive contribution to democracy.

In England and Wales, the judiciary, Her Majesty's Courts and Tribunal Services (HMCTS) and the Ministry of Justice (MoJ) have embarked on an ambitious reform whose aims are to radically transform and restructure court services and introduce digital justice for the overall purpose of improving access to justice in relation to the resolution of disputes. The reality in the courts of England and Wales is that the current reform means automation of processes. Digital transformation offers a real chance to improve access to justice particularly for low-value claims where a simplified process is more proportionate to the value of the dispute. This paper argues therefore that, for everyday low-value civil disputes, alternative dispute resolution (ADR) processes should be at the core of any design. In addition, fashioning new means to deliver access to justice should not just be about increasing government efficiency, but also about using technology to design and create innovative, new, agile and ‘user-centric’ pathways.

Under art 24A(1) of the Constitution, the Supreme Court is granted the power to review legal instruments below laws (undang-undang). This means that an applicant could seek judicial review of regulations other than Acts of Parliament (Undang-Undang) with a request to strike it out because, for example, it contravenes national laws. This would provide the courts with an opportunity to review the legitimacy of the regulation and determine whether it is ultra vires, or beyond power. The Supreme Court has the power to cancel a regulation if it is found to be in conflict with a higher law. This article analyses the judicial review in the Supreme Court. It begins by highlighting the origins and formation of judicial review before the regulation promulgation of the Supreme Court (PERMA) No. 1/1993, and then examines several aspects of procedural law in the current Supreme Court Regulation in No. 1/2011. Keywords: Supreme Court, Judicial Review, Procedural Law.

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.