BERSIH’s Post

The SCORK today on Minimum Mandatory Sentences Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions.

A Supreme Court decision (and dissent) that clearly draw the lines between principled originalism under our Constitution and advocacy for an all-powerful administrative state unconstrained by law. The 7th Amendment plainly requires a jury trial in all lawsuits. The Securities and Exchange Commission (SEC) sought to charge the defendant civil penalties for fraud and, in doing so, acted as prosecutor and judge (no jury allowed). The Court said: “A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator.” Simple enough, but not for the three "progressive" members of the Court. In a dissent, Justice Sotomayor weaseled her way around the 7th Amendment by claiming "There are good reasons for Congress to set up a scheme like the SEC’s. It may yield important benefits over jury trials in federal court, such as greater efficiency and expertise, transparency and reasoned decision making, as well as uniformity, predictability, and greater political accountability. . ." "Sotomayor complains that the Court’s decision “prescribes artificial constraints on what modern-day adaptable governance must look like.” No, it reiterates constitutional constraints on what modern-day adaptable governance must look like. And “must” is a key word there. This stuff isn’t optional." "[Justice] Gorsuch writes: “The agency is free to pursue all of its charges against Mr. Jarkesy. And it is free to pursue them exactly as it had always done until 2010: In a court, before a judge, and with a jury.” You know, as the Constitution says. Thank goodness we don’t live in a world where Sotomayor’s dissent, with which the other two progressive justices agreed, is the opinion of the Court. Jarkesy makes clear that without originalism, there are practically no limits to government power." https://lnkd.in/gbprF53z

https://lnkd.in/grcf5rEq "The Constitution of the United States contains a preamble and seven articles that describe the way the government is structured and how it operates. The first three articles establish the three branches of government and their powers: Legislative (Congress), Executive (office of the President,) and Judicial (Federal court system). A system of checks and balances prevents any one of these separate powers from becoming dominant. Articles four through seven describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes." #NationalConstitutionDay #UTSAEngaged

Rules of Procedure and Conduct of Business in the National Assembly, 2007, Rr.31(c) & 284: Member of Parliament making derogatory remarks relating to conduct of a Judge of the Supreme Court or High Court. Expunction of such remarks by Speaker of Parliament Scope: Speaker could only expunge remarks which were not derogatory, Regarding derogatory remarks, the Speaker of the National Assembly and the Chairman Senate were under a constitutional obligation to take action in terms of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, inasmuch as the expunction of such derogatory remarks would be contrary to Constitution and law.

It would be interesting to know what sort of negotiation process, if any, led to the consent order. And for the mediators, what ethical challenges there might have been. Thanks for this post. I look forward to reading the decision.

The power and duty of the Court to declare statutes, parliamentary decisions, or executive action unconstitutional in appropriate cases is part of the doctrine of the living Constitution. The court's power has been exercised differently at different times; sometimes with reckless and doctrinaire enthusiasm; sometimes with great deference to the status and responsibilities of other branches of government; sometimes with a degree of weakness and timidity that comes close to the betrayal of trust. But the power exists, as integral part of the process of the Constitution. The court has the duty of interpreting the Constitution in many of its important aspects, and especially in those which concern the relations of the individual and the state. Eugene Rostow.

Settling judicial review applications often makes sense for applicants and public bodies. Sometimes, though, it does not make sense for society. Systematic settlement can disguise maladministration. A recent Irish decision (Niamh Hyland J) grapples with this problem, forcing a recalcitrant public body to explain in a transparent way the reasons for repeated failures to comply with statutory obligations. Ultimately Hyland J grants the consent order but in such a way as to shine a light on serious issues that will -- hopefully -- be addressed by other actors. https://lnkd.in/ePvG5tq2

[OPEN ACCESS] Ulf Öberg (Court of Justice of the European Union) published a foreword in #Concurrences 3-2024 titled "A ‘General’ Court in Name Only?". Read more here: https://shorturl.at/DZ4nM This article highlights the debate on specialization at the General Court following reforms to Protocol No. 3. It explores the Court's role in handling complex economic cases and the potential shift towards making the Court of Justice a constitutional court, while the General Court would handle simpler cases. The article also addresses concerns about case allocation and the need for balanced specialization. #concurrence #droitdelaconcurrence #competitionlaw #antitrustlaw #europeanlaw #judicialreview #judicialprotection #competence

Exploring Legal Landmarks: Dive into the 100 Important Supreme Court Judgments of 2023 in this insightful two-part series. From pivotal decisions shaping jurisprudence to landmark rulings with far-reaching impact, stay informed with LiveLaw's comprehensive coverage. #SupremeCourt #LegalInsights

Victoria Walker and I have been anticipatedly awaiting the recent Supreme Court judgement in Potanina v Potanin in relation to applications for permission to bring a Part III claim. It is interesting to learn that Supreme Court have corrected the previous interpretation of the law, stating that the threshold to bring such a case must be higher than simply having a "good arguable case". It must be solid with a real prospect of success. On the contrary, the threshold for setting aside a without notice order granting leave is now lower, ensuring that each party has the opportunity to be heard as to why a case should or should not be granted permission. It seems we may be waiving goodbye to short, 30 minute ex-parte hearings to decide if permission should be granted with the potential for the Court to start listing on notice hearings with time estimates between 2 hours and half a day! 👋 https://lnkd.in/dZKKgyMH #PartIII #internationalfamilylaw #familylaw #financialremedies