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    Judicial Review: Defending Constitutional Balance, A Legal Lens on Governance
    Judicial Review: Defending Constitutional Balance, A Legal Lens on Governance
    Judicial Review: Defending Constitutional Balance, A Legal Lens on Governance
    Ebook380 pages4 hours

    Judicial Review: Defending Constitutional Balance, A Legal Lens on Governance

    By Fouad Sabry

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    About this ebook

    Explore the essential world of "Judicial Review" in this pivotal "Political Science" volume. This book provides insights into judicial scrutiny, legal precedent, and power dynamics within constitutional frameworks.


    1: Judicial Review: Foundational concept where courts assess laws' constitutionality to protect rights and legal principles.


    2: Administrative Law: Examines court reviews of administrative decisions, balancing discretion and accountability.


    3: Constitutional Law: Focuses on principles that guide constitutional law, interpreting national charters' impact on governance.


    4: Separation of Powers: Analyzes how courts maintain balance among government branches, preventing overreach through checks.


    5: Judicial Independence: Investigates the independence of judicial systems, vital for fair adjudication and protection from influence.


    6: Nondelegation Doctrine: Assesses limits on legislative delegation to agencies, ensuring accountability and constitutional balance.


    7: Separation of Powers in the U.S.: Details checks and balances in the U.S. system, illustrating key judicial decisions shaping its evolution.


    8: Ultra Vires: Explores actions beyond legal authority, crucial for understanding court-enforced limits on powers.


    9: Australian Constitutional Law: Insights into Australia’s constitutional framework and its approach to judicial review and federalism.


    10: Australian Legal System: Covers Australia's legal system's structure and function, emphasizing its constitutional intersection.


    11: Separation of Powers in Australia: Contrasts Australia's power division with other jurisdictions, highlighting governance impacts.


    12: Constitution of Singapore: Examines Singapore's constitutional foundations and the judiciary's role in upholding freedoms.


    13: Law of France: Discovers France's legal traditions and its judiciary's role in constitutional interpretation.


    14: Supreme Court: Investigates supreme courts' roles in setting precedents and ensuring judicial consistency.


    15: Persona Designata: Explores personal designation concepts in legal contexts for specific roles or tasks.


    16: Law of Azerbaijan: Insights into Azerbaijan’s legal system and judiciary's role in safeguarding rights.


    17: Separation of Powers in the UK: Examines the UK’s governmental power dynamics shaped by historical and constitutional factors.


    18: Separation of Powers in Singapore: Compares Singapore’s division of powers with other jurisdictions, emphasizing governance impacts.


    19: South African Administrative Law: Analyzes South Africa's administrative law, focusing on judicial review and constitutional accountability.


    20: Parliamentary Sovereignty: Discusses parliamentary sovereignty principles and their implications for judicial review.


    21: Primary and Secondary Legislation: Explores primary vs. secondary legislation distinctions for understanding law enactment and review.

    LanguageEnglish
    PublisherOne Billion Knowledgeable
    Release dateOct 2, 2024
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      Judicial Review - Fouad Sabry

      Chapter 1: Judicial review

      There is a process known as judicial review that provides executive, legislative and administrative actions are subject to review by the judiciary.: 79 A court with authority for judicial review may invalidate laws, act and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful, or a statute may be invalidated for breaking the rules of a constitution. Both of these examples are examples of constitutionally incompatible acts and actions.

      The ability of the court to exercise oversight over the legislative and executive branches in situations when they exceed their authority is an example of judicial review, which is one of the checks and balances that are part of the separation of powers arrangement.

      This doctrine differs from one jurisdiction to the next, Therefore, the process and the extent of judicial review may vary from country to country and even within the same country.

      The High Court of Australia.

      The Constitution of Australia stipulates that an, One of the components of the separation of powers is the judicial system, in which acts taken by the administrative branch or the legislature are subject to scrutiny by the judiciary.

      Laws, activities and actions taken by the government that are in conflict with a higher authority (for example,.

      the Constitution) is subject to scrutiny and maybe overturned.

      Judicial review can be understood in the context of two distinct legal systems, civil law and common law, which are parallel to one another. Additionally, it can be understood in the context of two distinct theories of democracy concerning the manner in which the government ought to be organized with regard to the principles and doctrines of legislative supremacy and the separation of powers.

      To begin, the civil law and the common law are two independent legal systems that each have their own unique perspectives on judicial review policies. Judges who apply common law are considered to be sources of law since they have the ability to formulate new legal principles and also have the ability to reject legal principles that are no longer applicable. According to the civil law tradition, judges are considered to be those who implement the law, and they do not have the authority to create (or destroy) legal concepts.

      Second, the concept of separation of powers is an additional theory that proposes how the government of a democratic society ought to be structured. Montesquieu was the first person to propose the concept of separation of powers, which stands in contrast to legislative supremacy. The concept was later institutionalized in the United States by the Supreme Court's decision in Marbury v. Madison, which stated that the court possessed the authority of judicial review in order to enforce the separation of powers that was guaranteed by the Constitution of the United States. Despite the fact that Thomas Jefferson had previously voiced his disagreement to the concept of judicial review by an unelected body, this was not challenged by either the United States Congress or the president of the United States.

      Each branch of government should have a check on the powers of the other branches of government, which will result in a regulatory balance among all of the branches of government. The concept of separation of powers is based on the idea that no branch of government should be able to exercise power over any other branch of government without first being subjected to due process of law. The concept of checks and balances is essential to this approach. The judicial branch in the United States of America views judicial review as an essential mechanism for limiting the authority of the executive and legislative branches of government.

      Various approaches to the organization of democratic societies have resulted in a variety of perspectives about judicial review. Societies that are founded on common law and those that place an emphasis on the separation of powers are the most likely to put judicial review into practice. In spite of this, a great number of nations whose legal systems are founded on the principle of legislative supremacy have gradually accepted or enlarged the scope of judicial review. These nations include nations that adhere to both the civil law and common law traditions.

      Judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy (legislative supremacy and separation of powers). This is because some countries with common-law systems do not have judicial review of primary legislation. This is another reason why judicial review should be understood in this context. In spite of the fact that the United Kingdom is home to a common-law system, the nation continues to maintain a strong commitment to the concept of legislative supremacy. As a result, judges in the United Kingdom do not have the authority to overturn primary legislation. As a result of the United Kingdom's membership in the European Union, there was a conflict between the country's propensity toward legislative supremacy and the legal system of the EU, which specifically grants the Court of Justice of the European Union the authority to conduct judicial review.

      To guarantee that the principle of supra vires is adhered to during the process of judicial review, a court may take the following measures:, that a public body's actions do not exceed the powers given to them by legislation.: 38

      Administrative acts are individual decisions made by a public authority, such as a decision to give a subsidy or to remove a residency permit. The majority of contemporary legal systems recognize the ability of the courts to examine administrative acts. In the majority of systems, this also includes the assessment of secondary legislation, which refers to regulations of universal applicability that are legally enforceable and adopted by administrative authorities. Administrative courts are a system that has been introduced in certain nations, most notably France and Germany. These courts are tasked with the responsibility of resolving conflicts between members of the public and the administration. It is important to note that these courts in France are part of the administration, while in Germany they are part of the judiciary. Regular civil courts in other nations, such as the United States and the United Kingdom, are responsible for carrying out judicial review. However, in some of these countries, the responsibility of carrying out judicial review may be outsourced to specialist panels within these courts, such as the Administrative Court within the High Court of England and Wales. There are three types of administrative decisions that are reviewed in the United States: some are reviewed by the United States district courts, which are the general trial courts; some are reviewed directly by the United States courts of appeals; and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims, which, despite its name, is not technically a part of the federal judicial branch. The United States uses a mixed system. It is extremely typical for certain preliminary criteria to be satisfied before a request for judicial review of an administrative act is submitted to a court. One example of such a condition is the submission of a complaint to the authority itself. When it comes to administrative cases, the courts in the majority of countries use specialized processes.

      When it comes to judicial evaluation of the legality of primary legislation, which refers to laws that are approved directly by an elected legislature, there are about three basic approaches.

      However, there are some nations that do not allow for the legitimacy of primary law to be reviewed. According to the principle of parliamentary sovereignty, it is not possible to overturn Acts of Parliament in the United Kingdom. On the other hand, Orders in Council, which are another form of primary legislation that was not officially passed by Parliament, can be overturned (for more information, see Council of Civil Service Unions v Minister for the Civil Service (1985) and Miller/Cherry (2019)). Another illustration of this can be seen in the Netherlands, where the constitution expressly prohibits the courts from making decisions regarding the validity of primary legislation that has been passed by the Dutch legislature or their respective States-General.

      In nations that have adopted the English common law system, which is comprised of courts of broad jurisdiction, the process of judicial review is typically carried out by these courts, as opposed to specialized courts. Countries such as the United States of America, Canada, and Australia are all instances of this method.

      By utilizing a method of judicial interpretation that is pertinent to any case that is properly within their jurisdiction, federal and state courts in the United States are able to review and declare the constitutionality of legislation. This refers to the degree to which the legislation is in agreement with the Constitution, or the lack thereof. When used in the context of American law, the term judicial review primarily refers to the process by which statutes are evaluated to determine whether or not they are constitutional, particularly by the Supreme Court of the United States. In addition, courts in the United States have the ability to use judicial review in order to guarantee that a bill does not violate the constitutional rights of individuals. It is generally accepted that this was established in the case of Marbury v. Madison, which was brought before the Supreme Court in the year 1803.

      In both Canada and Australia, judicial review dates back to the time before their respective countries were established, which was in 1867 and 1901, respectively. In accordance with the British Colonial Laws Validity Act of 1865, a British colony was prohibited from passing laws that amended provisions of British laws that were directly applicable to the colony when those laws were enacted. As a result of the fact that the British Parliament was responsible for enacting the constitutions of both Canada and Australia, the laws that were made by the governments of both countries were required to be in accordance with the requirements of their respective constitutions. As of more recent times, the notion of judicial review originates from the supremacy clauses that are present in their constitutions.

      In 1920, the Czechoslovak Republic developed a system of judicial review by a specialized court known as the Constitutional Court. This system was based on the writings of Hans Kelsen, who was a prominent jurist during that time period. This method was also adopted at the same time by Austria, and it became known as the Austrian method. Additionally, Hans Kelsen was the major author of this system, and it was adopted by a number of other countries. Other courts under these systems do not have the authority to examine the legality of primary legislation; nevertheless, they frequently have the ability to commence the process of review by the Constitutional Court.

      It is a hybrid model because, just like in the United States, courts at all levels, both federal and state, have the authority to review primary legislation and declare it constitutional. Additionally, just like in the Czech Republic, there is a constitutional court that is responsible for reviewing the legality of primary legislation. The distinction lies in the fact that in the first instance, the decision regarding the law's conformity to the Russian Constitution only binds the parties to the lawsuit, whereas in the second instance, the decision of the Court must be adhered to by judges and government officials at all levels.

      The following table provides a comparison of the approaches used by various nations in the year 2010 with regard to constitutional review or judicial review.

      Australian administrative law § Judicial review

      A review of the judiciary in Austria

      Evaluation of the judiciary in Bangladesh

      A review of the judiciary in Canada

      Supreme Court of the Czech Republic's Constitutional Court

      A review of the judiciary in Denmark

      Legal review by the courts in English law

      A review of the judiciary in Germany

      A review of the judiciary in Hong Kong

      A review of the judiciary in India

      A review of the judiciary in Ireland

      A review of the judiciary in Malaysia

      Review of the New Zealand judicial system

      Evaluation of the judiciary in the Philippines

      A review of the judiciary in Scotland

      The role of the judiciary in South African

      Inspection by the judiciary in South Korea

      A review of the judiciary in Sweden

      Evaluation of the judiciary in Switzerland

      Taiwanese yuan (also known as the Republic of China Yian)

      In the United States, judicial review is performed.

      {End Chapter 1}

      Chapter 2: Administrative law

      A subfield of law that regulates the operations of government agencies that are under the purview of the executive branch is known as administrative law. Administrative law encompasses the functions of adjudication, the enforcement of laws, and the creation of rules by the executive branch (the rules that are created by the executive branch are typically referred to as regulations). It is generally accepted that administrative law is a subfield of public law.

      Administrative law is concerned with the decisions that are made by administrative units of government that are a component of the executive branch. These administrative units are responsible for making decisions in areas such as international trade, manufacturing, the environment, taxation, broadcasting, immigration, and transportation.

      Administrative law had a significant expansion during the 20th century as a result of the establishment of additional government agencies by legislative bodies all over the world in order to regulate the social, economic, and political spheres of human interaction.

      In countries that follow civil law, there are frequently administrative courts that are specialized and review these decisions.

      In the last fifty years, administrative law, in many countries of the civil law tradition, has opened itself to the influence of rules posed by supranational legal orders, in which judicial principles have a strong importance: it has led, for one, to changes in some traditional concepts of the administrative law model, as has happened with the public procurements or with judicial control of administrative activity and, for another, has built a supranational or international public administration, as in the environmental sector or with reference to education, for which, within the United Nations' system, it has been possible to assist to a further increase of administrative structure devoted to coordinate the States' activity in that sector.

      The majority of civil law jurisdictions, in contrast to the majority of common law jurisdictions, have specialized courts or sections that deal with administrative cases. These courts or sections, as a rule, apply procedural rules that are specifically designed for such cases and are distinct from those that are applied in private law proceedings, such as private law claims involving contracts or torts.

      Administrative proceedings in Brazil are normally heard by either the Federal Courts (in problems concerning the Federal Union) or the Public Treasury divisions of State Courts (in matters concerning the States). Both of these courts are responsible for hearing administrative cases. The cabinet of President Fernando Henrique Cardoso was responsible for a constitutional revision that was implemented in 1998. This reform included the establishment of regulatory agencies as a component of the executive branch. The judicial interpretations of the basic principles of public administration (Article 37 of the Federal Constitution) have had a significant impact on Brazilian administrative law ever since 1988. These principles include legality, impersonality, publicity of administrative acts, morality, and efficiency.

      In Chile, the President of the Republic is responsible for carrying out administrative duties, and he does so in conjunction with a number of ministries and other regulatory bodies that hold ministerial positions. The undersecretaries of each ministry are responsible for providing public service in order to fulfill the requirements of the public. When it comes to dealing with actions taken against administrative entities, there is not a single specialist court that handles these cases; nevertheless, there are multiple specialized courts and review procedures.

      Prior to the beginning of the economic reform era that Deng Xiaoping launched, administrative law in China was almost nonexistent. China has been in the process of constructing a new legal framework for administrative law since the 1980s. This framework includes the establishment of control mechanisms for the purpose of regulating the bureaucracy as well as disciplinary committees for the Chinese Communist Party. However, many people have stated that the efficacy of these laws is severely inadequate in terms of controlling the acts of the government. This is mostly due to institutional and systemic hurdles such as a weak court, poorly qualified judges and lawyers, and corruption.

      In 1990, the Administrative Supervision Regulations (行政检查条例) and the Administrative Reconsideration Regulations (行政复议条例) were passed.

      The 1993 State Civil Servant Provisional Regulations (国家公务员暂行条例) changed the way government officials were selected and promoted, Requires them to pass examinations as well as evaluations given annually, and the implementation of a rotational system.

      Every one of the three regulations has been revised and elevated to the status of legislation.

      In 1994, the State Compensation Law (国家赔偿法) was passed, followed by the Administrative Penalties Law (行政处罚法) in 1996.

      In the year 2012, the Administrative Compulsory Law was put into effect.

      During the year 2014, the Administrative Litigation Law was revised.

      Ongoing work is being done on the General Administrative Procedure Law.

      In France, there is a dual jurisdictional system, with the administrative branch having jurisdiction when a government entity is involved and the judiciary branch being responsible for issues pertaining to civil law and criminal law. The vast majority of lawsuits against national or local governments, as well as claims against private organizations that provide public programs and services

      During the course of their history, they have, France's administrative courts have developed an extensive and coherent case law (jurisprudence constante) and legal doctrine (principes généraux du droit [fr and principes fondamentaux reconnus par les lois de la République [fr), a great number of times prior to the incorporation of comparable ideas into constitutional and legal documents.

      Included in these principles are::

      Right to fair trial (droit à la défense), for the purpose of internal disciplinary bodies include

      The legal right to contest any administrative decision in front of an administrative court (also known as the droit au recours).

      Equal treatment of public service users (égalité devant le service public)

      Equal access to government employment (égalité d'accès à la fonction publique) without regard for political opinions

      Freedom of association (liberté d'association)

      Right to entrepreneurship (Liberté du Commerce et de l'industrie, lit.

      the liberty of business and industry)

      Right to legal certainty (Droit à la sécurité juridique)

      Administrative law in France, which serves as the foundation for administrative law on the continent, has exerted a significant amount of influence on administrative laws in a number of other nations, including Belgium, Greece, Turkey, and Tunisia.

      In Germany, the term Verwaltungsrecht refers to administrative law, which as a general rule oversees the relationship between citizens and authorities. This document lays out the rights and responsibilities of citizens. It is a component of public law, which is concerned with the organization of the public administration, the responsibilities that it does, and the actions that it takes. Moreover, it includes rules, regulations, directives, and judgments that were formulated by administrative agencies and are associated with them. These agencies include federal agencies, federal state authorities, urban administrations, as well as admissions offices and fiscal authorities, among others. There are three fundamental concepts that administration law in Germany adheres to.

      There is no such thing as acting against the law or acting without a law, according to the principle of the legality of the power, which states that there is no such thing.

      The principle of legal security, which incorporates both the principle of non-retroactivity and the notion of legal certainty.

      The principle of proportionality states that an act carried out by a governing body must be suitable, essential, and appropriate.

      General administrative law and special administrative law are the two categories that can be used to classify administrative jurisdiction in Germany.

      A significant portion of the administrative processes legislation, also known as the Verwaltungsverfahrensgesetz (VwVfG), is responsible for governing the general administration law. The rules of administrative courts, also known as the Verwaltungsgerichtsordnung (VwGO), the social security code, also known as the Sozialgesetzbuch (SGB), and the general fiscal legislation, also known as the Abgabenordnung (AO), are other sources of litigation.

      According to the Verwaltungsverfahrensgesetz (VwVfG), which was passed into law in 1977, an administration act is distinguished by the characteristics that are listed below::

      This constitutes a formal act.

      §§ 36 – 39, §§ 58 – 59 and § 80 VwV––fG rule the structure and the necessary elements of the administrative act.

      § 48 and § 49 VwVfG have a high relevance in practice, as well.

      In the following paragraphs, the prerequisites for redemption of an unlawful administration act (§ 48 VwVfG ) and withdrawal of a lawful administration act (§ 49 VwVfG

      The procedures that are followed in administrative court are governed by the administration procedural law, also known as the Verwaltungsgerichtsordnung (VwGO), which was brought into effect in the year 1960. There are five sections that make up the VwGO, and these sections comprise the constitution of the courts, Both the general fiscal legislation and the social security code (also known as the Sozialgesetzbuch or SGB) are of lesser significance in relation to administrative law.

      They serve as a supplement to the VwVfG and the VwGO in the areas of social legislation and taxation responsibilities, such as social welfare or financial support for students (BaFÖG) etc.

      The set of legislation that make up the special administrative law is quite extensive. Every specialized industry has its own set of codes. Those that are the most significant are the

      Planning Code for Towns and Countrysides (German: Baugesetzbuch, or BauGB)

      BImSchG stands for the Bundesimmissionsschutzgesetz, which is the Federal Control of Pollution Act.

      (German: Gewerbeordnung, or GewO) The Industrial Code

      Ordinance and Police Law (Polizei- und Ordnungsrecht)

      Statute Governing Restaurants (Gaststättenrecht [GastG]).

      Federal administrative court Bundesverwaltungsgericht is the highest administrative court in Germany, and it is responsible for the majority of administrative cases. In the areas of social security law (represented by the Bundessozialgericht) and tax law (represented by the Bundesfinanzhof), there are federal courts that have a specialized jurisdiction.

      In Italy, administrative law is referred to as Diritto amministrativo. It is a subfield of public law that regulates the organization of the public administration, as well as the actions that are carried out in the pursuit of the public interest by the public administration, and the interaction that exists between this and the citizens. There is a connection between its origins and the notion of the separation of powers within the state. The administrative power, which was formerly known as the executive power, plays a role in the organization of resources and individuals whose functions are delegated in order to accomplish the public interest objectives that are outlined in the legislation.

      The provisions of administrative law in the Netherlands are typically found in the different statutes that pertain to public services and regulations. In addition, there is a single General Administrative Law Act, often known as the Algemene wet bestuursrecht or Awb. This act serves as a very good example of the procedural laws that are in place in Europe. It is applicable to the process of making administrative decisions as well as the process of judicial review of these judgments in an administrative setting. The Algemene termijnenwet, often known as the General time provisions act, is another legislation that pertains to court procedures in general. This act contains basic regulations for time schedules associated with

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