A MATTER OF JUSTICE: JUDICIAL REVIEW AND NEW REMEDIES FOR THE 21ST CENTURY
Panel formed with individual proposals.
The purpose of a regulatory impact assessment (RIA) is to identify alternative solutions to address a policy problem, indicating both the positive and negative effects of each policy option. A well-executed assessment improves the transparency of the legislative procedure, and therefore increases trust in the legislator. In a later stage, the law for which the impact assessment was drafted can be brought for the Belgian Constitutional Court in an annulment procedure. This study will examine if the Constitutional Court, implicitly or explicitly, takes elements of the impact assessment into consideration during its appreciation of the constitutionality of the law. Moreover, the quality of the impact assessments will be analyzed which allows to determine if there is a relationship between the quality of the RIA and the conclusion on the constitutionality by the Constitutional Court.
The issue of having public law compensation as a constitutional remedy first surfaced in Bilkis case (1996) in Bangladesh. Textual interpretation of Article 102(1) of the Constitution clearly accommodates the scope for granting compensation as a constitutional remedy. In spite of having such constitutional mandate, in affirming and granting public law compensation as a constitutional remedy, the Supreme Court of Bangladesh in all cases, relied on comparative constitutional law. The objectives of this paper are twofold: first, to trace and describe the development of the idea of public law compensation as a constitutional remedy in Bangladesh - and second, to argue that the judicial affirmation of the idea of public law compensation as a constitutional remedy is an example of ‘constitutional borrowing‘ by ‘bricolage‘, a theory of comparative constitutional law advocated by Mark Tushnet. (Professor Dr Muhammad Ekramul Haque)
This paper critically examines the current case law of the Maltese Constitutional Court which does not give an “erga omnes“ effect to its judgments declaring laws to be constitutionally invalid. Consequently such judgments have effect only between the parties in litigation. This invariably causes problems as well as unnecessary litigation. It can also lead to different judgments on the validity of the same law.
The last 20 years has seen a paradigm shift in Australia‘s ‘fair hearing‘ rules. A requirement of ‘practical injustice‘ emerged from challenges to procedural mistakes in the early 2000s, and was then extended and put to heavy use by government lawyers. This focus on ‘consequence‘ was a retreat from traditional concern for public perceptions and ‘expectations‘ of executive process. It was perhaps part theoretical change (a new ‘contextualism‘ in administrative law) and part predictable response to high caseloads and changes in regulatory context. Yet this notion of ‘practical injustice‘ has been pulled in awkward directions, drawing courts into troubling hypotheticals and probabilities. Despite this, it has now been lifted into the broader ‘jurisdictional error‘ doctrine. Before it settles there, now is the time to revisit its lengthening shadow in natural justice cases, and its reshaping of the very purposes (and influence) of natural justice and the boundaries of the judicial role.
Protecting democratic integrity and preventing ‘malfunctioning‘ in democratic processes, particularly where those in power are ‘choking off the channels of political change‘. That is how Professor John Hart Ely described the role of constitutional courts in “Democracy and Distrust – A Theory of Judicial Review“ (1980: 103). Recent Australian electoral jurisprudence – in cases such as Unions NSW (No 2- 2019), Palmer (2019), Murphy (2016), Unions NSW (No 1- 2013) and Rowe (2010) – shows the High Court of Australia embracing (albeit not explicitly) key elements of Ely's ‘representation-reinforcing‘ rationale for judicial intervention. This paper explores this trend and its future implications.
In the debate about the legitimacy of judicial review of legislation two scholars have been especially prominent: Jeremy Waldron and Ronald Dworkin. Typically, these two scholars are characterized as sustaining opposing opinions regarding the legitimacy of judicial review. Interestingly, however, both have made their respective opinions turn on the same two issues: firstly, on “democraticness“ and secondly, on the prevalence of disagreement about values and rights. This raises the question why and where, despite sharing these premises, they part ways when it comes to assessing the consequences they have regarding institutional design. I argue that when viewed from these two angles - democracy and disagreement - the differences of their views on judicial review are, if they exist at all, minimal. I conclude that although neither of them can provide conclusive arguments for or against the institutionalization of judicial review, their debate yields remarkable insights in another domain.