Judicial Review in Administrative Law: a Comparative Study of Rights
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Corruption: Govt
CORRUPTION: GOVT. SILENCE, RHETORIC Some of the relevant and cogent issues pertaining to the privatisation of Sri Lanka Telecom carried out by the Public Enterprise Reform Commission [PERC] have been recently highlighted. This has been one of the major privatisations undertaken by the government, of a public utility, that is crucially important for the growth and development for this country. Such relevant and cogent issues, highlighted on the privatisation of Sri Lanka Telecom and the sale of 35% of its shareholdings to Nippon Telegraph & Telephone Corporation [NTT], were based on the very restricted and limited information, that had been released in outline to the media. Public spirited persons, obviously value transparency and public accountability in the conduct of public affairs, and decry that public transactions be questionably closeted away from public glare and scrutiny. TELECOM PRIVATISATION DOCUMENTATIONS Following are the documentations pertaining to the privatisation of Sri Lanka Telecom. 1. Report of the Technical Evaluation Committee for the Phase II bid evaluation of Sri Lanka Telecom, signed by its Chairman K.C. Logeswaran and members Siripala Jayaweera and V.K. Samaranayake. 2. Share Purchase Agreement between the government and Nippon Telegraph & Telephone Corporation dated August 5, 1997, signed by B.C. Perera, Secretary to the Treasury and Jun- ichiro Miyazu, President, NTT witnessed by Dr. P.B. Jayasundera, Chairman, PERC. 3. Shareholders' Agreement between the government, NTT and Sri Lanka Telecom dated August 5, 1997, signed by B.C. Perera, Secretary to the Treasury, Jun-ichiro Miyazu, President, NTT, Hemasiri Fernando, Chairman & R.D. Somasiri, Managing Director, Sri Lanka Telecom witnessed by Dr. -
Over 300,000 Affected by Floods
2 Tuesday 25th March, 2008 Are you a lucky winner? VASANA JAYAVIRU SUPIRI VASANA JAYODA SATURDAY DEVELOPMENT MAHAJANA SUWASETHA GOVISETHA FORTUNE SAMPATHA Date: SAMPATHA SAMPATHA Draw No. 419 FORTUNE Draw No: 162 Draw No. 1892 Draw No.645 Draw No: 969 Draw No: 707 19-03-2008 Date:22-03-2008 Date: 21-03-2008 Date: 18-02-2008 Date: 23-03-2008 Date: 16-02-2008 Date: 18-03-2008 Date: 20 - 03 - 2008 Draw No. 401 Draw No. 2010 Super No: 13 Date: 17.03.2008 Draw No. 439 Winning Nos: Winning Nos: Symbol:Capricorn Bonus No. 54 Winning Nos. Winning Nos. Winning Nos : Winning Nos. Winning Nos. 22 57 60 64 Winning Nos: Winning Nos: L- 6 - 8 - 4 - 5 - 3 - 4 32-36-37-46-63 W–07-14-55-60 J 31-36-37-64 N 10 38 62 63 117111 Super No 11 03-04-15-45 06 - 29 - 40 - 62 Wedding brings Over 300,000 tragedy to four by Lakshmi de Silva affected by floods A group of people returning after a wedding from Hatton had stopped by the by Lakshmi de Silva Bathiudeen told The Trincomalee Rs. 11,000 Kelani river at Kalugohotenne near Island yesterday. the Minister said. Kitulgala for a bath. Tragedy struck four More than 381,000 The District The number of hous- of them when they got into difficulties people were affected by Secretaries of Ampara, es completely destroyed and were drowned on Sunday (23). Two the recent floods in 10 were allocated Rs. by the floods were 228 bodies were recovered while the bodies districts and the gov- 650,000, Badulla, Rs. -
Administrative Lawt
SURVEY ARTICLES Administrative Lawt by Johnny C. Burris* James M. Landis, in many ways the prophet of the modern concept of administrative law and process both in theory and practice,' commented in 1938 that: The last century has witnessed the rise of a new instrument of govern- ment, the administrative tribunal. Without too much political theory but with a keen sense of the practicalities of the situation, agencies were cre- ated whose functions embraced the three aspects of government. Rule- making, enforcement, and the disposition of competing claims made by contending parties, were all intrusted to them. As the years passed, the process grew.2 What was true in 1938 is even truer today. The process continues to grow at a rate which defies the ability of the most diligent lawyer to keep track of developments.3 This article is a continuation of earlier efforts4 designed t Copyright 0 1988 by Johnny C. Burris. * Associate Professor of Law, Nova University Center for the Study of Law. University of Kentucky (B.G.S., 1975); Salmon P. Chase College of Law, Northern Kentucky University (J.D., 1978); Columbia University School of Law (LL.M., 1984). 1. T. McCitw, PRoPtirs OF REGULATION 153-209 (1984); D. RrrcHiE, JAMES M. LANDIS (1980). 2. J. LANDIS, THE ADMINISTRATIVE PROCESS 1-2 (1938) (emphasis added). 3. See, e.g., S. BREYER, REGULATION AND ITS REFORM 1-2, appendix 1 (1982); K. DAVIs, ADMINISTRATIVE LAW TEXT 3-4 (3d ed. 1972). It may also defy the ability of the courts and particularly the Supreme Court to continue to perform the traditional role assigned to them in the administrative process. -
Judicial Review Scope and Grounds
JUDICIAL REVIEW SCOPE AND GROUNDS By Scott Blair, Advocate THE TRIGONOMETRY OF JUDICIAL REVIEW In Scotland, unlike England and Wales, the judicial review jurisdiction is not limited to cases which have an element of public law. As explained by Lord President Hope in West v. Secretary of State for Scotland 1992 SC 385 at 413 the scope of judicial review is as follows: “ The following propositions are intended therefore to define the principles by reference to which the competency of all applications to the supervisory jurisdiction under Rule of Court 260B is to be determined: 1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires. 3. The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy. By way of explanation we would emphasise these important points: (a) Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. -
The Justification for Protecting Reasonable Expectations
Brooklyn Law School BrooklynWorks Faculty Scholarship 2001 The uJ stification for Protecting Reasonable Expectations Bailey Kuklin Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Law and Philosophy Commons Recommended Citation 29 Hofstra L. Rev. 863 (2001) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. THE JUSTIFICATION FOR PROTECTING REASONABLE EXPECTATIONS Bailey H. Kuklin* CONTENTS I. INTRODUCTION ......................................................................... 864 II. THE REASONS FOR PROTECTING REASONABLE EXPEcTATIONS ......................................................................... 867 A. Deontology ....................................................................... 867 B. Corrective Justice ............................................................. 869 C. DistributiveJustice ........................................................... 875 D. Intuitive Justice ................................................................. 877 E. Teleology .......................................................................... 879 F. Economics ......................................................................... 881 G. Miscellaneous................................................................... 883 Ifi. HARD CASES ............................................................................. 884 A. The Psychology of Expectations...................................... -
Judicial Power UQLJ Article F (Accepted Version)
Judicial Power and the United Kingdom’s Changing Constitution * Mark Elliott Introduction The phrase ‘judicial power’ is an evocative one whose beauty — or danger — is to a large extent in the eye of the beholder. For some, the possession by the judicial branch of powers with real bite, up to and including powers of constitutional review, is a precondition of liberal democracy. For others, however, ‘judicial power’ conjures up something quite different — including the potential of curial authority to threaten democracy, and a corresponding imperative that such authority be approached with caution and rigorously cabined. Of course, the difficult questions, as always, arise other than at the extremes, where judges would respectively lack any power to uphold constitutional standards or, conversely, be free to run amok. The hard question is thus one of degree. Judicial power, in any rule of law-based system, is a given. But how much is too much? There are many ways in which that question can be, and has been, approached. One possibility involves using constitutional or political theory as the predominant lens, with the aim of developing a model of democracy that prescribes, among other things, the legitimate extent and nature of the judicial role. In this article, however, I take a different, less abstract approach, by examining the question of judicial power within a particular temporal and jurisdictional context — namely, the United Kingdom today, where a recent and prominent strand of opinion holds that the judiciary is guilty of overreach, and that ‘judicial power’ is therefore something that needs not only to be watched, but to be scaled back.1 In this paper, I take the unease that animates that school of thought and use it as a starting- point. -
Judicial Review Across the Common Law World – Some Lessons from a Comparative Survey
JUDICIAL REVIEW ACROSS THE COMMON LAW WORLD – SOME LESSONS FROM A COMPARATIVE SURVEY Richard Gordon QC It is a great privilege to be invited to give this talk to the Attorney-General’s chambers in Singapore. I have recently been in Hong Kong conducting a case before the Court of Final Appeal. You will be pleased (but perhaps not altogether surprised) to learn that everyone I spoke to there about Singapore had only the highest praise. In particular, your modern and forward-looking approach to law (including arbitration) was widely commented on. It is, I believe, characteristic of a modern and forward-looking approach to law that it looks at how other jurisdictions cope with similar issues. Hopefully, therefore, my topic will not be inappropriate. It is Judicial Review across the Common Law World – Some Lessons from a Comparative Survey. I think that it is easy for a lawyer in the United Kingdom to believe that the cases and principles that mark out the terrain of judicial review are the same throughout the common law world. We do not look for differences or changes. As Walter Bagehot – the great constitutional writer – once said of our unwritten constitution: ‘[a]n ancient and ever-altering constitution, such as the British, is like an old man who still wears, with attached fondness, clothes in the fashion of his youth. What you see of him is the same; what you do not see is wholly altered.’1 That insularity of any kind is a great mistake was brought home to me when I spent a few months in the spring of 2008 researching, teaching and lecturing in Australia, New Zealand and Hong Kong. -
Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept
Legitimate expectations in investment treaty law: Understanding the roots and the limits of a controversial concept Michele Potestà* TABLE OF CONTENTS I. Introduction .................................................................................................................... 1 II. In search of a justification beyond arbitral precedent ............................................. 3 III. Protection of legitimate expectations in domestic legal systems: A general principle of law? ................................................................................................................ 7 IV. Legitimate expectations and fair and equitable treatment ................................... 13 1. General remarks .................................................................................................. 13 2. Distinct situations warranting distinct approaches .......................................... 15 A. Contractual arrangements .................................................................................... 15 B. Informal representations ...................................................................................... 19 C. General regulatory framework ............................................................................. 26 a. Expectations of a stable framework v. specific commitments .......................... 30 b. Expectations must take into account all circumstances, including the level of development of the host country ........................................................................... 35 3. -
997 Modernizing Judicial Review Of
MODERNIZING JUDICIAL REVIEW OF PREROGATIVE POWERS 997 MODERNIZING JUDICIAL REVIEW OF THE EXERCISE OF PREROGATIVE POWERS IN CANADA JENNIFER A. KLINCK* Despite judicial pronouncements that the source of government power, whether statutory or prerogative, should not affect judicial review, Canadian courts respond much more tentatively when asked to review exercises of prerogative powers than exercises of statutory powers. Courts (1) define prerogative powers in a way that makes it difficult to precisely articulate their existence and scope; (2) frequently avoid judicially reviewing exercises of prerogative powers by applying peculiar justiciability tests; and (3) when they do engage in judicial review, generally limit themselves to a conservative form of procedural review. This article proposes that courts reform judicial review of the exercise of prerogative powers by (1) adopting a principled approach to defining prerogative powers that starts with distinguishing the Crown’s prerogative powers from its natural person powers; (2) abandoning peculiar interest-based and subject matter justiciability tests in favour of a test that turns on the nature of the question, and maintaining a subject matter justiciability test only for exercises of prerogative powers that are integral to the democratic process; and (3) applying standard principles of administrative law to judicial review of the existence, scope, and exercise of prerogative powers. TABLE OF CONTENTS I. INTRODUCTION ............................................. 998 A.OVERVIEW OF THE PREROGATIVE POWERS ................... 998 B. DEMOCRATIC LEGITIMACY AND RULE OF LAW DEFICIENCES ..... 999 C. REFORMS TO JUDICIAL REVIEW OF THE EXERCISE OF PREROGATIVE POWERS ANIMATED BY THE DEMOCRATIC PRINCIPLE AND THE RULE OF LAW ......................... 1000 II. DEFINING THE PREROGATIVE ................................. 1002 A. -
The Fourth Amendment and the "Legitimate Expectation of Privacy"
Vanderbilt Law Review Volume 34 Issue 5 Issue 5 - October 1981 Article 2 10-1981 The Fourth Amendment and the "Legitimate Expectation of Privacy" Gerald G. Ashdown Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Criminal Law Commons, and the Fourth Amendment Commons Recommended Citation Gerald G. Ashdown, The Fourth Amendment and the "Legitimate Expectation of Privacy", 34 Vanderbilt Law Review 1289 (1981) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol34/iss5/2 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Fourth Amendment and the "Legitimate Expectation of Privacy" Gerald G. Ashdown* I. INTRODUCTION Judicial supervision of police practices has always necessitated a rather delicate balance. To the extent societal crime control val- ues are served, privacy and individual rights may, on balance, have to be compromised. On the other hand, effective law enforcement cannot be held absolutely sacrosanct at the expense of individual privacy interests. The dilemma thus created is one of providing the maximum possible accommodation to one interest without unduly infringing upon the other.1 The protection of individual privacy interests in this confron- tation with crime detection practices requires either the benefit of benevolent governmental self-restraint or some superimposed legal barrier protecting citizens from government overreaching. Given the strong governmental interest in suppressing antisocial conduct, in the form of both crime and perceived subversion, governmental self-control is unlikely to be exercised. -
Separate Opinion
Separate Opinion In the Arbitration under Chapter XI of the NAFTA and the UNCITRAL Arbitration Rules: Thunderbird ./. Mexico 1) Summary 1. I concur with my colleagues on several significant issues of the case: • The questions of jurisdiction, admissibility, control and waivers; • the rejection of the expropriation (NAFTA Art. 1110) claim; • the rejection of the “denial of administrative justice” claim; • the rejection of the NAFTA governments’ position that pursuant to Article 1102 Claimant needs to prove that the government had a direct intention to harm the foreign investor because it is foreign is required for Art. 1102 and needs to be proven by claimant; • the general view that the principle of legitimate expectation forms part, i.e. a subcategory, of the duty to afford fair and equitable treatment under Art. 1105 of the NAFTA. We also seem to concur on the general conditions for this claim – an expectation of the investor to be caused by and attributed to the government, backed- up by investment relying on such expectation, requiring the legitimacy of the expectation in terms of the competency of the officials responsible for it and the procedure for issuing it and the reasonableness of the investor in relying on the expectation. I do, however, not concur with the application of this standard to the specific factual situation in light of the purpose, specific content and precedents of the legitimate expectations standard as it should be applied under investment protection treaties based on recent relevant jurisprudence. 2. I have found the rejection of the national treatment (non- discrimination) under Art. 1102 more difficult. -
Fourth Amendment Protection and the Expectation of Privacy in the Home of Another: When Is a Guest Really Not a Guest - Minnesota V
Land & Water Law Review Volume 35 Issue 2 Article 10 2000 Search and Seizure - Fourth Amendment Protection and the Expectation of Privacy in the Home of Another: When Is a Guest Really Not a Guest - Minnesota v. Carter Gay George Follow this and additional works at: https://scholarship.law.uwyo.edu/land_water Recommended Citation George, Gay (2000) "Search and Seizure - Fourth Amendment Protection and the Expectation of Privacy in the Home of Another: When Is a Guest Really Not a Guest - Minnesota v. Carter," Land & Water Law Review: Vol. 35 : Iss. 2 , pp. 567 - 584. Available at: https://scholarship.law.uwyo.edu/land_water/vol35/iss2/10 This Note is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Land & Water Law Review by an authorized editor of Law Archive of Wyoming Scholarship. George: Search and Seizure - Fourth Amendment Protection and the Expectat SEARCH AND SEIZURE-Fourth Amendment Protection and the Expectation of Privacy in the Home of Another: When is a Guest Really not a Guest? Minnesota v. Carter, 525 U.S. 83 (1998). INTRODUCTION Based on a tip from an informant who had walked by a ground-floor apartment and saw the occupants bagging white powder, Jim Thielen, an Eagan, Minnesota, police officer, went to the apartment complex.' Once there, in order to get close enough to view the activities inside, he left the common sidewalk, crossed over the lawn, climbed behind some bushes and situated himself approximately twelve-to-eighteen inches from the window Thielen observed the packaging for several minutes by looking through a gap in a closed Venetian blind? He then left to contact police headquarters 4 so that affidavits for a search warrant could be prepared.