Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.

Made available in DSpace on 2017-06-01T18:17:56Z (GMT). No. of bitstreams: 1 Andre de Albuquerque Garcia.pdf: 1069399 bytes, checksum: 6e6125cda92a42909f8cc282ccad6c00 (MD5) Previous issue date: 2007-08-13 / The work approaches the issues related to urgency injunctions on the constitutional judicial review, specially those related to its process, as well as to its doctrine, precedents and legal treatment. Initially, it focuses on the brazilian constitutional jurisdiction, framework on which the constitutional judicial review is inserted, and it intends to analyze the juridical nature and effects caused by anticipation of effects of jurisdictional injunctions on legal proceeding. Study supported on juridical doctrine and precedents related to lawsuits on which seems feasible the employ of urgency injunctions, such as the generic direct action of unconstitutionality and the claim of violation of fundamental rule of law / O trabalho versa sobre a disciplina relativa à tutela de urgência no controle concentrado de constitucionalidade, especialmente em seus desdobramentos de natureza processual, seu tratamento legal, doutrinário e jurisprudencial. Enfoca inicialmente a jurisdição constitucional brasileira, contexto no qual se insere o controle concentrado de constitucionalidade e visa a analisar a natureza jurídica e os efeitos decorrentes da concessão da antecipação dos efeitos da tutela jurisdicional no bojo dos procedimentos. Estudo baseado em dados doutrinários e jurisprudenciais circunscrito às ações concentradas em que se afigura possível o emprego de medidas liminares, a saber, a ação direta de inconstitucionalidade genérica, a ação declaratória de constitucionalidade e a argüição de descumprimento de preceito fundamental

Judicial review of unlawful interference in public administration Abstract The thesis aims at complex description of the judicial review of unlawful interference in public administration within the system of Czech administrative justice. The thesis is divided into three main parts, each of them is further divided into other chapters. The judicial review of unlawful interference is special type of action in Czech administrative justice. The thesis firstly describes what kind of activity of administrative body can be considered as unlawful interference and provides concrete examples formulated by The Supreme Court of Administrative Justice. The thesis also deals with unlawful interferences in tax search and their specifics as well as unlawful interference of security forces. The thesis also shows what can't be considered as an unlawful interference. Next, there is a short description of history of judicial review of the unlawful interference. The second part deals with the process of judicial review, jurisdiction of court, requirements of the action and its acceptability. The thesis is systematically structured based on Administrative Justice Procedure Act. The thesis describes differences between two types of action against unlawful interference. Thesis also provides information about differences between...

[pt] Na obra A Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow apresenta uma concepção alternativa para cartas de direito e para revisão judicial em sede de controle de constitucionalidade. O autor visa demonstrar as vantagens e a legitimidade democrática na adoção de cartas constitucionais escritas e de juízes como agentes capazes de encontrar o que chama de moralidade constitucional da comunidade. Para isso, Waluchow propõe a concepção de que as cartas mesclem pontos fixos e flexíveis, de modo a ser capaz de conferir a segurança jurídica necessária sobre determinados direitos aos indivíduos, mas promovendo certa flexibilidade sobre como e em que casos os direitos devem ser reconhecidos e ponderados. A análise de Waluchow se volta para direitos que, via de regra, são prescritos em linguagem aberta, que demandam a mensuração de sua incidência por meio de escolha oficial informada face aos casos concretos. Tal característica ocorre em razão da relevante influência da moral sobre os supracitados direitos, pois sua interpretação se modifica e evolui ao passo que o mesmo ocorre na moralidade social. Para construir sua fundamentação, Waluchow se propõe a apresentar e responder às objeções que, segundo ele, possuem maior força argumentativa, sendo seu maior expoente Jeremy Waldron. Nesse sentido, o presente trabalho se volta a apresentar o modelo proposto por Waluchow a ser adotado nas democracias constitucionais e em seguida expor a análise de outros autores sobre sua obra. A partir disso, avalia-se criticamente a viabilidade prática de sua proposta, os pontos a serem mantidos e os que devem ser reformados ou melhor fundamentados pelo autor em sua contribuição ao debate jurídico-interpretativo da norma constitucional. / [en] In his work A Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow presents an alternative conception for charters of law and for judicial review in the context of constitutional review. The author aims to demonstrate the advantages and democratic legitimacy of adopting written constitutional letters and judges as capable agents to find what he calls the community s constitutional morality. For this, Waluchow proposes the concept that the charters merge fixed and flexible points, in order to be able to provide the necessary legal certainty on certain rights to individuals while promoting certain flexibility on how and in which cases rights should be recognized and weighted. Waluchow s analysis turns to rights that, as a rule, are prescribed in open language that demands the measurement of their incidence, through informed official choice in the face of concrete cases. This feature is due to the relevant influence of morals on the aforementioned rights, as their interpretation changes and evolves while the same occurs in social morality. To build his foundation, Waluchow proposes to present and answer the objections that, according to him, have greater argumentative force, with its greatest exponent being Jeremy Waldron. In this sense, the present work turns to present the model proposed by Waluchow to be adopted in constitutional democracies and then exposes the analysis of other authors about his work. From this, the practical feasibility of its proposal is critically evaluated, the points to be maintained, and those that must be reformed or better substantiated by the author in his contribution to the legal debate to interpret the constitutional rule.

Qu'entend-on par actes de l'Exécutif en Thaïlande ? Ces actes sont-ils différents des actes de l'Exécutif français ? En quoi diffèrent-ils des actes de gouvernement et des actes du gouvernement ? Sont-ils des actes administratifs ? Quelle est l'étendue du contrôle du juge à leur égard ? Quel effet produit en Thaïlande l'existence d'une compétence parallèle et parfois concurrente de la juridiction administrative et de la juridiction constitutionnelle ? Telles sont quelques unes des questions auxquelles cette thèse très documentée et d'actualité tente d'apporter une réponse cohérente dans un ordre juridique largement bouleversé par les évènements politiques récents. / What are acts of Executive in Thailand? Are they different from acts of Executive in France? How are the acts of government (acte de gouvernement) different from government's act (acte du gouvernement)? Are they administrative acts? What is the scope of judicial review of those acts? What is the effect in Thailand of a parallel and sometimes competing jurisdiction of the Administrative Court and the Constitutional Court? These are some of the questions that this thesis in a thorough judicial and administrative review in order to provide an answer in a clear and concise order due to the recent political events.

Section 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope of judicial authority as encompassing the resolution of any dispute that can be resolved by the application of law. The courts in South Africa have developed several justiciability canons that restrain when courts may adjudicate disputes, such as standing, mootness, ripeness, and the prevention of advisory opinions. These justiciability canons emanate from constitutional considerations such as respect for separation of powers and the proper role and scope of judicial review in a constitutional democracy. This study focuses on another justiciability canon - the political question doctrine. This doctrine arises from the principle of separation of powers and, in the main, provides that certain questions of constitutional law are allocated to the discretion of the elected branches of government for resolution. As a result, such questions are non-justiciable and require the judiciary to abstain from deciding them because not doing so intrudes into the functions of the elected branches of government. The underlying theme is that such questions must find resolution in the political process. Through a comparative lens, the study examines the origins and current application of the political question doctrine in selected countries with a view to obtain lessons therefrom. It examines the origins of the doctrine, by placing particular emphasis on the early application of the doctrine by the US Supreme Court. The study also examines the modern application of the doctrine in the constitutional jurisprudence of several countries, including Ghana, Uganda and Nigeria. It advances the view that while the doctrine exists in the South African jurisprudence, the Constitutional Court should articulate and develop it into a clear doctrine taking into account lessons from those countries. The study offers some recommendations in this regard. The study submits that the political question doctrine is an appropriate legal mechanism through which the South African judiciary can address the recent problem of the proliferation of cases brought to the courts that raise non-justiciable political questions and threaten to delegitimize the role of the courts in a democracy. / Public, Constitutional and International Law / LL. D.

In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles. As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised. The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy. / Jurisprudence / LL. M.

The concept of judicial law-making impacts on the extent, meaning and scope relationship between the legislature, the executive and the judiciary. It is an integral function of the courts while its shape, meaning and nature seem to lack sufficient formulation and articulation, which results in an inherent problem regarding its legitimacy. This study examines the legitimacy and the working of the South African constitutional judicial law-making concepts. Its effect on the constitutional relationships between all three branches of government is scrutinized. In order to fully probe this concept, its impact and application on the separation of powers, judicial review, constitutional deference and mandatory minimum sentences becomes inevitable. The introductory part of this study looks at origins and historical development of the separation of powers doctrine and its application under the 1996 South African Constitution. The latter part focuses on the nature and the scope of judicial review, judicial law-making, constitutional deference and mandatory minimum sentences with a view establishing the impact of these concepts in our judicial law-making. The development of these concepts by South African courts, and what seems to be the lack of formulation and articulation of South African constitutional judicial law-making which raises questions regarding its legitimacy is probed. This research recommends that it is of the utmost importance that South Africa develops its own unique and comprehensive doctrine of separation of powers. The Constitution further requires reforms in order to clarify the extent to which the courts can go when formulating laws and public policy in the interests of justice, and whether the interests-of-justice test is capable of delivering a well-informed outcome in developing this jurisdiction’s laws. South African jurisprudence also needs to be developed in empowering the legislature to make laws which are constitutionally compliant without making the courts the sole expositor of the Constitution. Lastly, the extent to which the legislature can enact certain laws must be redefined, which on face value might seems to be encroaching into the courts’ independence and authority. / Criminal and Procedural Law / LL. D. (Criminal and Procedural Law)

The Constitution stipulates that its value-commitments are to inform the interpretation of statutes and the development of the common law and customary law. Legislative construction and law-application generally are therefore to be perceived as involving an axiological dimension. Three hermeneutical traditions are dealt with to the end of clarifying the approaches to be adopted in everyday legal• argumentation. The study culminates in the adduction of leads for substantive !juridical argument in the process of statutory interpretation and in handling common-law and customary-law sources. These leads are shown to be functional byi way of a critical discussion of recent case law and a conspectus of contemporary t~ought bearing on the nature of customary law. The social dimension of the legal process is throughout underscored as a factor of significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so marked an attitude of a previous time, should be abjured to the extent that it is disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist perceptions as well as kindred stances are berated. The penultimate chapter of this thesis suggests an encompassing approach to the interpretation of statutes, comprised of a systematic tabulation of insights previously garnered. The fmal chapter postulates that common law and customary law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a conceptual framework for dealing respectively with each of these sources. / Law / LL.D.

This dissertation deals with judicial review of governmental action and individual legal activism. It investigates whether judicial protection of individual rights and individual legal activism, within the field of public law, can be seen as an alternative or complement to electoral control of political and administrative powers. To discuss the effect of various standing rules and the potential societal function of public law adjudication, a model for analyzing the character of public law adjudication has been developed. The model allows for a characterization of public law adjudication as either Liberal or Republican, depending on features of standing rules, court proceedings, and court decisions. It concludes that judicial protection of individual rights and individual legal activism within the field of public law can be seen as an alternative or complement to electoral control of political and administrative powers, especially when public trust in, and the powers of, the legislative assembly and political parties is low and decreasing, and if the preconditions for individual legal activism are of such a character that access to justice is available to the larger public and not only a limited group of advantaged individuals. This theoretical framework is then used to analyse judicial protection of individual rights and individual legal activism in post-Socialist Russia. The results show that the Russian state is best described as authoritarian and that the traditional principal-agent relationship is weak. Thus, in order to strengthen the individual in relation to the state, alternatives for exercising control and participation are required. An analysis of the legislative framework, i.e., the law as it is laid down in the books, shows that Russian administrative law is rights-based and that the character of Russian public law adjudication is closer to the Republican model than the Liberal. However, the Russian support structure is still weak and finds itself in an increasingly inhospitable environment – legally, financially, and politically. In addition, this dissertation concludes that Russia’s membership in the CoE has had an impact on judicial protection of individual rights within the sphere of public law in terms of: improving the legislative framework; developing Russian court jurisprudence referring to the ECHR and to the jurisprudence of the ECtHR; exerting pressure on the Russian state to improve practices of the state bureaucracy; stimulating individual legal activism, and increasing individuals’ knowledge and awareness of their lawful rights and how to implement them.