November 07

Administrative Law Digest

This post contains a roundup of recent developments (in and out of courts) and recent scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at alawblogorg@gmail.com.

Judicial Developments in Administrative Law

  1. The Delhi High Court has set aside the disciplinary action taken by Jawaharlal Nehru University (JNU) against a former JNU Students’ Union President. The case involved a protest organised by JNU students. The court found that the disciplinary action was issued without following the principles of natural justice, as the petitioner was not given due opportunity to rebut the allegations.
  2. The UK High Court has held that the definition of torture used by the Home Office is unlawfully restrictive and had no rational justification in relation to the identification of those particularly vulnerable to harm in immigration detention. The issue arose in a case brought by the charity Medical Justice concerning a group of unlawfully detained torture victims. The Home Office’s definition was applied so as to exclude cases of non-state torture.
  3. The Hong Kong High Court has heard an application for judicial review against the Torture Claim Appeal Board and the Director of Immigration for dismissing the non-refoulement of the applicant. The court allowed the application against the Board’s decision due to the Board not giving the applicant an opportunity an oral hearing. He rejected the application in respect of the Director’s decision, as the Director had given adequate reasons with regard to Country of Origin Information.

Recent Scholarship

  1. Feldman, David, Pulling a Trigger or Starting a Journey? Brexit in the Supreme Court The Cambridge Law Journal (2017) (examines the UK Supreme Court’s recent decisions regarding Brexit)
  2. Lin, Devin; Valentin Gunther and Mathias Honer, Interpreting Article 104: The Way, the How, the Timing Hong Kong Law Journal (2017) (article examines the exercise of interpretive power by the Standing Committee of the National People’s Congress on the Basic in the context of its 5th Interpretation on Article 104; Article 104 is states that all members of the Executive Council, Legislative Council and judiciary must swear to uphold the Basic Law of Hong Kong and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China)
  3. Eliasson, Anna; Robert Chiarella and Ahmad Shameem, Ousting the Ouster Clause? Judicial Review (2017) (examines the English High Court’s recent decisions regarding ouster clauses and highlights how the legislature has been able to craft structures for decision-making in which the jurisdiction of the courts is minimised)
  4. Sen, Ronojoy, India’s Democracy at 70: The Disputed Role of the Courts Journal of Democracy (2017) (examines three aspects of India’s Supreme Court: the struggle between the different branches over “custody of the Constitution; the question of judicial independence and charges against the Supreme Court of judicial activism)
  5. Campagnolo, Yan, A Rational Approach to Cabinet Immunity Under the Common Law, Alberta Law Review (2017) (examines the public interest immunity [PII] doctrine, which empowers the government to suppress information, the disclosure of which would injure the community as a whole; argues that the court, as opposed to the government, should have the final word on the validity of PII claims)
  6. Armstrong, Kenneth; John Bell; Paul Daly and Mark Elliot, Implementing Transition: How Would It Work? (2017) (examines how the UK’s proposed “transition” period, as part of the process of UK’s withdrawal from EU, might be adopted in terms of both EU and UK law; identifies a number of potential legal difficulties that would have to be addressed if a transitional period were to be implemented)

Current Events

  1. The Canadian government will pay compensation to thousands of aboriginals who were forcibly removed as children from their families decades ago. The compensation is designed to settle many of the lawsuits launched by survivors, who say that the forced removal deprived them of their heritage and led to mental disorders, substance abuse and suicide.
  2. The American Civil Liberties Union of Illinois has filed a lawsuit against the Chicago Police Department, accusing them of widespread abuses against people with disabilities and ethnic minorities. Inter alia, the lawsuit is seeking injunctive relief to force the city to implement recommendations from an earlier US Department of Justice report.
  3. The Indian Supreme Court is set to hear please challenging the newly amended Finance Act. The amendments had changed the search, selection and removal process of members and presiding officials of tribunals, including the Central Administrative Tribunal.
  4. In a landmark ruling, a South African court has ruled that the police was responsible for the death of an anti-apartheid activist in 1971. The police had previously said that the activist killed himself.
  5. In Singapore, a lawyer has been barred from instituting legal proceedings against the government, the Attorney-General or the public prosecutor without the High Court’s permission. The Attorney-General’s Chambers had applied to prevent what it said was abuse of the court process through his past legal actions.
  6. The UK Government has released a “race audit” that exposes some of the persistent inequalities of British life. Among other things, the report highlights that the rate of arrests among black people is more than three times that of their white counterparts and that white people still disproportionately dominate the top ranks of the civil service.
  7. 20 Hong Kong “Occupy Central” protesters will face punishment for contempt of court. They had earlier been arrested for refusing to leave when bailiffs acting on a court order cleared the protest site on Nathan Road in 2014.