Public litigation and the concept of “deference” in judicial review (original) (raw)
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The persuasive function of constitutional adjudication. How to achieve the agreement, not the truth 1 Polish constitutional crisis of 2015-2017 clearly indicates that concerns about politically indexed manner of appointing constitutional judges, scope of the competence of the Constitutional Court and attempts to introduce restrictions or even blocking its operation by the parliamentary majority, led to the erosion of the legitimacy of the constitutional court, built on the conviction about its substantive and completely impartial nature. The essence of constitutional review is the power to rule on the content and conflict of laws, which usually means the loss of binding force of an act of law deemed unconstitutional. This power remains above the authority of the parliament, and therefore also above sovereign's authority. Therefore, it requires rather good justification of its legitimacy, that is, the belief that it is exercised by appropriate entity in the form acceptable by citizens, as well as the conviction that its effects are satisfactory-of course, all these three qualities are extremely difficult to prove. In addition, the Constitutional Court is invariably exposed to intense and heated disputes concerning its activities, which was clearly demonstrated during the crisis created around the Constitutional Court of Poland in the years 2015-2017. This raises the question of the legitimacy of its power built on the idea of fairness and lawfulness of the effects of its actions-that is, judgments about the constitutionality of the law. The following considerations are thus intended to approximate the answer to the question whether and to what extent the judgments of the constitutional court allow for creation of conviction of its rightness, rationality or other reasons for which we would be inclined to agree with interpretation contained therein or materialization of constitutional norms, by nature open and frequently bearing the potential of various interpretations-as well as a number of disputes related to them. The paper analyzes the types of arguments used by the constitutional courts, indicating their persuasive ability and completion of judgement's basic task, which is finding agreement on the content of the rights guaranteed by the constitution.
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This thesis examines the concept of "deference" in relation to judicial review of administrative decisions in Canada, and then compares this approach to judicial review to that which exists in the United Kingdom, New Zealand and Australia. Canadian courts have adopted a system of "substantive review" of administrative decisions, at least since 1979 (if not earlier), and will generally show deference to the decision-maker. It is important to note that Canadian courts have interpreted the word "deference" not as subservience (an approach that would make judicial review pointless), but as a form of "respectful attention" to the decision under review. Canadian courts recognise that they do not have a monopoly of wisdom on matters of statutory interpretation, but will step in to set a decision aside when that decision is unreasonable in some sense.
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The Doctrine of Judicial Review reads as the power exercised by the Constitutional Courts to review the validity and the constitutionality of any statute passed by the legislature or any provision of the state or the validity of any act(s) or orders which includes orders or ordinances promulgated by the executive. Judicial review serves two important functions: legitimising government actions and protecting the Constitution from any undue violation by the government. The final power of the judiciary to review and determine the validity of a statute or ordinance can be described as the power of 'judicial review." In India, the rule of law is followed. In other words, the Constitution is the country's supreme law, and any law based on it is null and void. 1 In any country where the principle of 'rechtsstaat' or the 'rule of law' is followed, the Judiciary must always play an active role in reviewing and analysing the validity of the laws and orders promulgated by the legislative and the executive. The doctrine of Judicial Review is not an express provision in the Constitution of the United States, but it is an implied rule that the American Judiciary has undertaken, the first instance of this was in the case of Marbury v. Maddison 2 , where it was stated by the US Supreme Court that; Congress does not have the power to pass laws that override the Constitution, such as by expanding the scope of the Supreme Court's original jurisdiction. What the court means by this is that the legislature does not have the authority to make laws that override or abridge the Constitutional provisions. The Indian Judiciary has the express authority under Article 13 of the Constitution 3 to exercise the power of Judicial Review on any laws or actions passed by the legislature or the executive. Judicial review is a great weapon in the hands of Judges. It contains the power of a court to hold 1
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In this paper I tackle the vexata quaestio of constitutional courts and their justification. I argue for the integral necessity of constitutional court for liberal democratic systems. Departing from a liberal definition of democratic legitimacy, which identifies political obligation with democratic rule of law, I show that constitutional review of laws is inseparable from liberal democracy as a concept. To demonstrate this I survey the issue of Common Law and the political reality in the United Kingdom, which lacks a codified constitution. I conclude by taking up the question on whether the judiciary power should be separated from constitutional review as such, arguing for a separation that recognises the different but similar functions of the two powers.
Deference to the Administration in Judicial Review: Comparative Perspectives
Deference to the Administration in Judicial Review, 2019
Judicial deference to the administration is a concept and legal practice that is present to a greater or lesser degree in every constitutional system. The analysis of the national reports reveals why, how and when the courts defer to administrative actions. In each constitutional system, deference is employed differently as the positioning of the judiciary within the separation of powers, the role of the courts as a mechanism of checks and balances and the scope of the judicial review differ. On the top of that, within the constitutional system itself, the way deference operates is complex, multi-faceted and usually covert within the same legal order. Deference is granted on political and technical grounds. Within this framework though, what is political depends on a number of issues such as the societal values and the political timing. More specifically, it seems that topic of controversial nature, that wide portions of the society oppose, are perceived as political and therefore the courts are keener to grant deference. But the degree of deference depends on the characteristics of the dispute, the gravity of the issue, the level of technicality and whether the dispute is human rights related. It is also a dynamic concept as it is adjusted to the necessity of the circumstances.