The forms, functions, and varieties of weak(ened) judicial review

2019 ◽  
Vol 17 (3) ◽  
pp. 904-930
Author(s):  
Rosalind Dixon
Keyword(s):  
Judicial Review ◽  
Weak Form ◽  
Political Context ◽  
Actual Practice ◽  
Constitutional Amendment ◽  
Core Concept ◽  
Second Look ◽  
Multiple Dimensions ◽  
Constitutional Analysis

Abstract The concept of “weak” judicial review is now a core concept in comparative constitutional analysis. Yet the relative weakness of judicial review will depend on a variety of factors, including the availability of formal mechanisms for legislative override or limiting courts’ jurisdiction, the difficulty of constitutional amendment, the scope of judicial review both in first- and second-look cases, and the actual practice of legislators and judges in a jurisdiction. The strength of judicial review is therefore not a true binary but rather a concept that spans multiple dimensions and a question of degree rather than kind. The desirability of weak as opposed to strong or even super-strong forms of review will likewise depend on a range of factors, which can and do vary across time and different contexts. This article thus aims to unpack the concept of weak-form review with a view to sharpening our understanding of both its internal complexity and relationship to questions of broader political context.

scholarly journals Mengukur Konstitusionalitas Peninjauan Kembali (PK) Kedua dalam Perkara Perdata

2020 ◽  
Vol 22 (2) ◽  
pp. 452-474
Author(s):  
Priyo Handoko
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Criminal Case ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Due Process Of Law ◽  
The Law ◽  
Civil Cases ◽  
Constitutional Analysis

The study aims to provide a constitutional analysis of judicial review (PK) in civil cases for more than once. The research-based is the decision of the Constitutional Court No. 108 / PUU-XIV / 2016 and No. 34 / PUU-XI / 2013 in which the two judgments provide a different classification between criminal and civil cases. The method used in this research is a normative juridical with a conceptual, legislation, and case approach. The results of the study assert that: first, the opportunity for judicial review (PK) more than once in a criminal case is an effort to uphold justice substantively by the Constitutional Court. Whereas the restriction of judicial review (PK) only once in civil cases is intended to guarantee legal certainty. Secondly, there is rational inconsistency in the arguments of the Constitutional Court which is indicated in Decision No. 108 / PUU-XIV / 2016 and No. 34 / PUU-XI / 2013. Both criminal and civil cases must seek to establish and maintain substantial justice, especially since there is a due process of law principle that requires that everyone can get the same opportunity before the law.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review

2021 ◽  
pp. 152-175
Author(s):  
Rosalind Dixon ◽  
David Landau
Keyword(s):  
Judicial Review ◽  
Political Institutions ◽  
Prime Minister ◽  
Weak Form ◽  
Criminal Prosecution ◽  
Constitutional Interpretation

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.

scholarly journals Alternative forms of judicial review

2021 ◽  
Vol 280 (3) ◽  
pp. 15-40
Author(s):  
Mark Tushnet
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Weak Form ◽  
The United States ◽  
Strong Form ◽  
Constitutional Design ◽  
Late Twentieth ◽  
Conceptual Problems ◽  
Late Twentieth Century ◽  
Allocation Strategies

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

Abusive Judicial Review

2021 ◽  
pp. 81-115
Author(s):  
Rosalind Dixon ◽  
David Landau
Keyword(s):  
Judicial Review ◽  
Weak Form ◽  
Strong Form ◽  
Constitutional Change ◽  
Political Actors ◽  
Liberal Democratic

This chapter explains the concept of abusive judicial review: the use of courts by regimes to achieve anti-democratic constitutional change. Abusive judicial review involves abusive constitutional borrowing in two distinct senses: first, regimes lean on captured or cowed courts as a strategy to legitimate or advance authoritarian goals, and second, those courts often draw upon liberal democratic doctrines in abusive ways. It develops a typology of two different forms of the phenomenon—a weak form where courts uphold authoritarian moves by political actors, and a strong form where they act more directly to remove obstacles to authoritarian programs. Finally, it draws out two main examples: the Venezuelan Supreme Court’s repression of the opposition-held legislature using a doctrine of ‘legislative omission’ and other tools, and the wielding of militant democracy doctrines by the Cambodian and Thai apex courts to ban parties for authoritarian ends.

Judicial Review and Parliamentary Power

2018 ◽  
pp. 73-83
Author(s):  
K.T. Thomas
Keyword(s):  
Judicial Review ◽  
Overwhelming Majority ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
Abuse Of Power ◽  
The Law

This essay discusses the lack of any discernible attempt by the bench in the NJAC Case to read down the provisions of the 99th Amendment to the Constitution of India. This essay argues that neither the overwhelming majority with which the Amendment was passed in Parliament, nor the Court’s own precedent, where it has inclined towards reading down amendments came to the aid of the 99th Amendment. This essay also argues how the mere apprehension of abuse of power by the eminent persons or the Law Minister ought not to have been deemed sufficient to invalidate a constitutional amendment. In parting, the author provides some thoughts and recommendations, to both legislators and courts on how to ensure that future constitutional amendments do not meet the fate of the 99th Amendment, and receive the respect they deserve.

Activism and Popular Constitutionalism in Contemporary Vietnam

2017 ◽  
Vol 42 (03) ◽  
pp. 677-710 ◽  
Author(s):  
Bui Son ◽  
Pip Nicholson
Keyword(s):  
Political Science ◽  
Constitutional Reform ◽  
Law And Society ◽  
Constitutional Amendment ◽  
The Political ◽  
Constitutional Change ◽  
History Of ◽  
Constitutional Analysis ◽  
Popular Constitutionalism

Based on Chinese constitutional analysis, political science, and law and society studies, we argue that work extending the application of popular constitutionalism to authoritarian states applies in Vietnam, as popular constitutionalism targets sites relevant to constitutional reform. We contend that popular constitutionalism located in authoritarian states requires three factors: a tradition of activism, space for reformist and pragmatic dialogue targeting constitutional change, and the political need for legitimacy. This article analyses activism in Vietnam, focusing on the lodging of Petition 72 with the Constitutional Amendment Drafting Commission in 2013, and the resulting responses. We conclude that this activism was pivotal in advocating for new constitutional norms, evidencing popular constitutionalism in Vietnam. The long history of Vietnamese scholar activism, the relative space for governance debates, and the political need for legitimacy made this possible. We also note that popular constitutionalism faces constraints in authoritarian states, which may shape its trajectory.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

2020 ◽  
Vol 14 (1) ◽  
pp. 19-48
Author(s):  
Yaniv Roznai ◽  
Tamar Hostovsky Brandes
Keyword(s):  
Judicial Review ◽  
Constitutional Amendment ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
Constitutional Amendments ◽  
Ongoing Process ◽  
Gradual Process ◽  
The World ◽  
Formal Procedures ◽  
Constitutional Changes

AbstractThe world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

Judicial Standard of Review and Webster

1989 ◽  
Vol 15 (2-3) ◽  
pp. 211-216
Author(s):  
James Bopp ◽  
Richard E. Coleson
Keyword(s):  
Reproductive Health ◽  
Health Services ◽  
Judicial Review ◽  
Rational Basis ◽  
Reproductive Health Services ◽  
Low Level ◽  
Strict Scrutiny ◽  
Constitutional Right ◽  
Roe V Wade ◽  
Constitutional Analysis

The necessary first step in the judicial review of any state statute is to determine the appropriate standard of review. Without resolution of this threshold issue, the court would be uncertain what constitutional analysis to employ, whether a low level of scrutiny, strict scrutiny or some intermediate standard.Thus, in Webster v. Reproductive Health Services, the Court should not merely assume, without confronting, the continued viability of Roe v. Wade. Failure to reexamine Roe would depart from precedents of the Court and lead to untoward results.In determining the standard of review to be applied to the Missouri statute at issue in Webster, the Court should be guided by the analysis of Bowers v. Hardwick, and find that there is no constitutional right to abortion. Thus, the standard of review to be employed in Webster is the rational basis test. Under this test, the Missouri statute should be upheld.

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