scholarly journals Judicial Review and the Legislative Process: Some Empirical and Normative Aspects of Due Process of Lawmaking

2001 ◽  
Author(s):  
Philip P. Frickey ◽  
Steven S. Smith
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Legislative Process

Response: Recent Development regarding Judicial Review of Legislative Process in Israel

2020 ◽  
Author(s):  
Gonen Ilan
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
The State ◽  
Legislative Process ◽  
High Court ◽  
Court Of Justice ◽  
State Economy ◽  
Recent Developments ◽  
First Time

Abstract In an article published recently in the Statue Law Review,1 Prof. Shucheng Wang has examined the deferential approach to judicial review of the legislative process as adopted by the CFA,2 due to the Leung3 case. In this short response, I focus on two issues that are not mentioned in Prof. Wang’s article but that are crucial for understanding recent developments concerning judicial review of the legislative process in Israel by Israel’s High Court of Justice (HCJ). First, this response will present the most recent, and more crucial, ruling of the HCJ from late 2017 in the Quantinsky v. The Israeli Knesset (2017)4 which established a new precedent and in which, for the first time in Israel’s history, a new law was invalidated due to flaws in the legislative process. Second, I wish to emphasize the specific type of law that was invalidated and that is more prone to flaws in the legislative process: The Omnibus Law of Arrangement in the State Economy, which includes hundreds of budget statutes, and is characterized by a very unique and hasty legislative process. Therefore, this response wishes to complement Prof. Wang’s thesis and provide an update regarding the Israeli HCJ judicial approach of due process of legislation.

Judicial Review of the Legislative Process

2006 ◽  
Vol 39 (2) ◽  
pp. 182-247 ◽  
Author(s):  
Suzie Navot
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Due Process ◽  
Comparative Law ◽  
Legislative Process ◽  
Basic Rights ◽  
Legislative Procedures ◽  
The Supreme Court ◽  
Israeli Supreme Court ◽  
The Relationship

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.

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.

scholarly journals A Case for Judicial Review of Legislative Process in India?

2020 ◽  
Vol 53 (4) ◽  
pp. 358-410
Author(s):  
Vikram A. Narayan ◽  
Jahnavi Sindhu
Keyword(s):  
Judicial Review ◽  
Legislative Process ◽  
Indian Context

This paper explores the possibility of judicial review of legislative process (“JRLP”) in India. It draws on scholarship from other jurisdictions to outline a case in favour of JRLP in light of India’s particular context. It begins by critically analyzing the functioning of India’s Parliament, where we identify several fundamental weaknesses in the legislative process and demonstrate with examples how they are exploited to bypass debate and deliberation. The paper then considers several arguments advanced in favour of judicial review as a possible solution to weaknesses in the legislative process. In this regard, the paper distinguishes between two kinds of judicial review, referred to as “direct” and “indirect” JRLP. The paper considers the plausibility of employing direct and indirect JRLP in light of India’s constitutional provisions and existing doctrinal position, demonstrating that neither forms are necessarily barred, and have been employed in part. Finally, the paper outlines the case for and against the use of direct and indirect JRLP in the Indian context, and concludes by suggesting that these forms of judicial review may be a normatively desirable approach to remedying some of the fundamental weaknesses in India’s legislative process.

Judicial Review

2016 ◽  
Author(s):  
Michael Schillig
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Fundamental Rights ◽  
Bank Resolution ◽  
The Us ◽  
Charter Of Fundamental Rights ◽  
Us Constitution ◽  
Takings Clause ◽  
The Right ◽  
The Eu

The exercise of extensive powers by authorities during the recovery and resolution process may interfere with constitutionally protected fundamental rights of stakeholder in a multitude of ways. Particularly relevant are the right to conduct a business and the right to property under the EU Charter of fundamental rights, as well as the takings clause under the US constitution. A balance needs to be struck between the aims and objectives of bank resolution and the rights of investors and the requirements of due process. This is normally achieved through expedited and limited judicial review. This chapter assesses whether and to what extent the respective procedures are in line with constitutional and fundamental rights requirements.

Proceduralism and Automation

2020 ◽  
pp. 275-298 ◽  
Author(s):  
Carol Harlow ◽  
Richard Rawlings
Keyword(s):  
Artificial Intelligence ◽  
Public Administration ◽  
Judicial Review ◽  
Due Process ◽  
Case Law ◽  
Administrative Law ◽  
Paradigm Change ◽  
Technological Revolution ◽  
Administrative Procedure ◽  
The Impact

In this chapter, we argue that administrative procedure has become a central organising concept for administrative law. Our first theme is the steady proceduralisation of public administration experienced in recent years, in the framework of a relationship between courts and administration which we present as a two-way, non-hierarchical process. We look first at internal drivers to proceduralisation emanating from administration, notably the managerial reforms of the 1980s and the rise of regulation as a standard governance technique. We then turn to the contemporary case law of judicial review, focussing on the judicial response to, and stimulus for, administrative proceduralism. Our second theme is the idea of procedures as a repository for values and of values as an important, though often subliminal, driver of administrative procedure. We look at the potential for exchange as well as dissonance between public administration and administrative law. Our third theme concerns challenges to administrative law from the technological revolution currently under way. The impact of automation on public administration was at first rather modest; today, however, technology is taking great leaps forward—from computerisation to artificial intelligence and beyond. The innovations have so far been welcomed as beneficial—faster and more consistent administration, swifter and less costly courts and tribunals. It is time to recognise that we are facing a paradigm change, in which key values and procedures of administrative law, such as transparency, accountability, individuation, and due process, will need to be supported and sustained.

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