The USA Journals Volume 03 Issue 06-2021
67
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
67-73
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-10
I
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2021:
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952
‘
ABSTRACT
This article discusses the role of the institute of judicial review in ensuring the independence of the
judiciary; its importance in ensuring the rights and freedoms of citizens; its differences from fair trial;
its types and forms of implementation; its subjects and objects; its purpose and content; its
characteristics of execution through legal and disciplinary norms; its functions in law enforcement,
regulation, organizational maintenance, education; as well as its prospects in strengthening the
independence of the judiciary from other branches of government.
KEYWORDS
Review, control, judicial review, constitutional review, general judicial review, special judicial review,
forms of judicial review, fair trial, substantial and procedural law.
INTRODUCTION
The introduction of the institute of judicial
review in the Republic of Uzbekistan is one of
the main directions of judicial and legal
reforms. In the doctrine of law, judicial review
is now considered as one of the functions of
the judiciary, which is recognized not only as a
procedural guarantee of the rights and
freedoms of citizens, but also as a means of
establishing the rule of law in a society.
Therefore, nowadays, the perception that the
judiciary should administer only fair trial has
changed, leading to the need for judicial
review in order to achieve full justice. This, in
turn, serves to ensure the rule of law in
practice by exerting its influence on ensuring
the supremacy of law in all spheres of public
life. As a result, this promotes the system in
which state bodies, their officials and citizens
The Role Of The Institution Of Judicial Review In Ensuring The
Independence Of The Judiciary
Dilshod Aripov Urinboevich
Ph.D., Associate Professor, Adviser To Director Of The Supreme School Of Judges, Uzbekistan
Journal
Website:
http://theamericanjour
nals.com/index.php/taj
pslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 06-2021
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The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
67-73
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-10
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are obliged to comply with the law; where
violations of the law are prevented or
eliminated; when citizens are protected by
courts both during court proceedings and in
the post-trial stages.
Different opinions are put forward on the
difference between the concepts of “review”
and “control” among scientists, taking into
account the subordination of the object of
control to the subject of control as the main
criterion. In particular, H. Odilkariev, B.
Kasimov, E. Hodzhiev and T. Hodzhiev explain
the concept of review “as a type of
management activity carried out by specially
authorized state bodies in order to ensure the
rule of law in the activities of objects that are
not subordinated to them”.
1
D. Mirazov, on the other hand, is of the
opinion that the concept of “judicial control”
is more rational to be used in order to define
not the process when the courts on criminal
cases take control over actions and decisions
of the investigative bodies in pre-trial period,
but the process of oversight over the legality
of those actions and decisions.
2
According to the Uzbek dictionary, the word
“control” is derived from the word “controle-
contre role”, which means to check, to
supervise, while the word “review” is
1
Odilqoriev H.T., Qosimov B.E , Administrative
law. Textbook. (2010) p. 448. Khojiev E., Khojiev
T., Administrative law. Textbook. (2008) p.317-
318.
2
Mirazov D.M. Control and supervision in the
preliminary
investigation:
Historical,
organizational
and
procedural
aspects:
Monograph. (Academy of the Ministry of Internal
Affairs of the Republic of Uzbekistan, 2015) p.
72.
explained as to manage, to constantly monitor
actions of some parties, to check.
3
According to the Uzbek legal encyclopedia,
“review” is one of the forms of activity of
state bodies aimed at ensuring the rule of
law.
4
In our opinion, in both cases, control and
review are aimed at the same goal, and it is
not expedient to divide it into types according
to their objects. In addition, since the word
“control” is not derived from the Uzbek
language, it is not appropriate to include it in
legal terminology only on a formal basis.
Therefore, instead of subordinating the
objects of review in order to define the
concept, it is more rational to pay attention
into the forms and powers of control
conferred on it by the law in order to specify
general and special types of judicial review. In
particular, due to the fact that the procedural
mechanism of judicial review of preliminary
investigative actions and the review of
decisions of lower courts by a higher court is
specified in the law, it is rational to classify
them collectively as a special judicial review,
whereas, the supervision over the execution
of decisions of the Plenum of the Supreme
Court by the courts, supervision over the
execution of other court orders, supervision
by regional courts over activities of inter-
district, district courts can be generalized as a
general judicial review.
From the point of view of the division of
judicial review into general and special types,
its forms can vary from the execution of a fair
3
Annotated dictionary of the Uzbek language:
"National encyclopedia of Uzbekistan" (State
Scientific Publishing House, 2006).
4
Legal Encyclopedia of Uzbekistan. (Adolat,
2010) p. 328.
The USA Journals Volume 03 Issue 06-2021
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The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
67-73
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-10
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2021:
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trial
to
application
of
administrative
mechanisms. In particular, general judicial
review means the control of higher courts
over the activities of subordinate courts not
related to the administration of justice
(institutional review), and special judicial
review means control over certain activities in
accordance with the procedure established by
law
(procedural
rules).
This
can
be
summarized as both judicial review and
execution of a fair trial are performed in
administrative forms. Thus, while the general
court review takes the form of administrative
measures only within the powers established
by the substantial law, the special judicial
review is exercised in the manner prescribed
by the procedural law.
This is supported by L. Savyuk and N.
Kolokolov, who confirmed that the judiciary
functions take the form not only of a fair trial,
but also of the constitutional review over the
legality of normative documents; judicial
review over the legality and validity of
decisions, as well as, action of the bodies
carrying out operational search, inquiry and
preliminary investigations; guarantee of
enforcement
of
judicial
decisions;
interpretation of laws based on judicial
practice; formation of judicial corpus;
assistance to judicial society; overview over
the legality of decisions of local representative
and executive bodies.
5
Thus,
judicial
review
differs
from
administration of a fair trial in the following
ways:
5
Savyuk L.K. Law enforcement agencies,
(2007) p. 86-88; Kolokolov N.A. Judicial control
at the stage of preliminary investigation (2004)
p. 16-27.
Judicial review is performed not always in a
procedural form;
Fair trial is one of the forms of judicial review;
While fair trial is administered on the basis of
application and complaint of the parties,
Judicial review is initiated by the competent
courts;
Judicial review shall be exercised on the basis
of the rules of substantive law, while fair trial
shall be exercised on the basis of the rules of
procedural law.
The legal basis of judicial review is provided by
substantive and procedural laws, through
which the courts may protect the rights and
freedoms of citizens during the process of
administration of justice and any subsequent
stages. In particular, the administrative courts
should
consider
the
obligations
of
administrative bodies and their officials to
ensure the rights and freedoms of citizens by
considering complaints about illegal actions
(inaction) and decisions of officials.
It should be noted that the judicial review over
the legality of decisions and actions
(inactions) of state bodies and public
organizations deserves particular attention,
as, unlike other supervisory bodies, courts are
independent and impartial, and do not serve
for the interest of other parties.
According to M. Umarova, judicial review is a
specific form of administration of justice and
can never be considered as a separate
function of the judiciary. Since the essence of
events are revealed by the particular features
of it, those of judicial review are: independent
action of the court in the administration of
justice; execution by independent judicial
bodies (judges); implementation in a certain
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The American Journal of Political Science Law and Criminology
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prescribed procedural form; fulfillment of two
main tasks by judicial review: protection of the
rights and interests of legal entities and
individuals, and taking measures to ensure the
rule of law in decision-making by the
authorities.
6
In our opinion, this view is also controversial,
because the judicial review is a broader
concept if compared to the concept of a fair
trial. It comprises overall oversight over
execution of a fair trial and general review
performed by administrative mechanisms. As
evidence, Articles 13, 26, 30, 34, and 74 of the
Law “On Courts” provide for institutional
review by the courts, and Articles 24-26
provide for special review the administration
of a fair trial.
7
Simultaneously, it is important to focus on the
powers of the Constitutional Court to exercise
review over the legislation. In accordance with
the Law "On the Constitutional Court of the
Republic of Uzbekistan", Constitutional Court
exercises special control over non-negative
impact of normative legal acts on the
constitutional rights and freedoms of citizens
by
determining
the
legality
and
constitutionality of the laws of the Republic of
Uzbekistan and resolutions of the chambers
of the Oliy Majlis of the Republic of
Uzbekistan, decrees, resolutions and orders of
the President of the Republic of Uzbekistan,
decisions of the government, local state
authorities, interstate contractual and other
obligations of the Republic of Uzbekistan.
Thus, judicial review performs other functions
as well, such as: checking the compliance of
6
Umarova M.A. The mechanism of
judicial control: a general theoretical study.
Dissertation at KYHN. (2018).
7
the activities of state bodies and their officials
with the law and the tasks assigned to them;
protection of the constitutional rights and
freedoms of citizens by identifying and
eliminating violations and taking measures
against the perpetrators; maintenance of
checks and balances between state powers,
along with insurance of the rule of law and
justice in a society.
Taking into account all abovementioned,
judicial review is a form of exercising judicial
power, aimed at protecting the constitutional
rights and freedoms of citizens and legal
entities in accordance with the law in pre-trial,
trial and post-trial stages of hearings, along
with restoration of violated rights and
insurance of the legality of the activities of
public authorities.
According to the objects of judicial review, it
can be divided into
internal
and
external
types. Internal judicial review means the
review of the legality of decisions of civil,
criminal, administrative and economic courts
by higher courts, and external judicial review
refers to the review of the legality of decisions
of other bodies of courts and the actions of
their officials. This results in expansion of the
powers of judiciary in the field of modern law,
making it a separate div not only for the
administration of justice, but also for judicial
review.
In our opinion, depending on the purpose of
implementation, general judicial review can be
performed in the form of institutional review,
while, special one is exercised by way of
constitutional, criminal, administrative, civil
and economic judicial activity. Here, general
review has preventive role, while, special
review has role of restoration of violated
The USA Journals Volume 03 Issue 06-2021
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The American Journal of Political Science Law and Criminology
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Pages:
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Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-10
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rights and insurance of compliance with the
law.
The content of judicial control is comprised of
following activities: monitoring the activities
of facilities within its competence, which are
elements of state control; obtaining and
analyzing the accuracy of information about
the performance of activities by state bodies;
identifying causes and conditions of violations
of law; taking measures to prevent negative
consequences,
damage,
accidents,
inappropriate actions and expenses by state
bodies; keeping records of the offenses
committed, determining their causes and
circumstances; identifying the wrongdoers
bringing them before justice.
The content of judicial control consists of the
following components:
a)
Normative-legal sources on which the
formation and implementation of judicial
review is based.
The legal basis for judicial review can be
divided into two groups: the first is general
legislation (the Constitution, the Law on
Courts, etc.), and the second is the legislation
(procedural codes, Laws of the Republic of
Uzbekistan “On the Constitutional Court of
the
Republic
of
Uzbekistan”,
“On
Bankruptcy”,
“On
Administrative
Procedures”, etc.) that directly regulates
certain areas of judicial review;
b)
Legal basis on which the subject
exercising judicial review and their powers
are
established.
Judicial
review
is
exercised only by the chairmen of courts,
judges and judicial staff, and their powers
are
enshrined
in
substantive
and
procedural law;
c)
Legal means, methods and forms
implemented in the process of exercising
judicial review.
d)
It is the normative nature of legal
instruments that undermine the legitimacy
of judicial review. It includes legal norms
providing for the administration of justice,
the review of court decisions, the review
and analysis of the activities of the courts,
and the application of legal sanctions;
e)
Organizational and legal basis for the
implementation of judicial review and its
effective
functioning.
They
include
measures, plans, roadmaps, instructions,
guidelines for the correct and effective
organization of court proceedings and
administrative control.
Judicial review is based not only on legal but
also on ethical principles. In particular, this is
reflected in the observance of the rules of
ethics and internal rules of the courts by
judges. For example, in accordance with
Article 19 of the Code of ethical conduct of
judges of the Republic of Uzbekistan, the
Judicial Inspectorate and the relevant judicial
qualification boards shall monitor the
observance of the provisions of this Code. The
Judicial Inspectorate shall submit proposals to
the Supreme judicial council to take
appropriate measures against a judge, who
has violated the provisions of this Code.
In addition, judicial review is not limited with
review of only legal document, but also the
legality of other documents that, normally, do
not have such a nature. In particular, criminal
courts review the legality of decisions of
inquiry officers, investigators, prosecutors,
administrative courts, government officials,
and civil and economic courts of all legal
entities except government agencies.
The USA Journals Volume 03 Issue 06-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
June 30, 2021 |
Pages:
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Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-10
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Thus, based on the goals and objectives of
judicial review, it can be concluded that it
performs such functions as law enforcement,
regulation, organizational support, as well as
education.
When talking about the specifics of judicial
review, it is necessary to focus on the ways
how it is performed. There are several ways of
judicial review, depending on the purpose,
subject, scope of the supervisory function, the
effective and complete resolution of the issue:
1)
Preliminary
(permissive)
review
(consideration of petitions for the use of
the Habeas Corps, allowing the inquiry
officers and investigators to conduct
procedural
and
expeditious
actions
restricting the constitutional rights and
freedoms of citizens).
2)
Control
over
the
judicial
process
(identification of violations identified
during the trial, making private rulings on
the results).
3)
Judicial review over the process of
consideration and resolution of appeals
against decisions or actions (inactions) of
state bodies and their officials affecting
the constitutional rights and freedoms of
citizens.
From the point of view of subjects
empowered with judicial review functions, it is
solely judiciary, which, can be divided into the
Constitutional Court, courts of general
jurisdiction
and
administrative
courts.
Following this, the courts exercising judicial
review can be divided into republican
(Constitutional Court, Supreme Court) and
lower (regional, district) courts, depending on
the jurisdiction of the case. From this point of
view, M. Umarova distinguishes between the
types of judicial review: constitutional judicial
review; review of pre-trial process of criminal
proceedings; general and arbitration courts`
review
over
civil,
administrative
and
arbitration proceedings.
8
From the point of view of the objects of
judicial review, these can be divided into:
control exercised by the courts of higher
instance over the legality of decisions of the
courts of lower instances; control over the
activities
of
inquiry
and
preliminary
investigation bodies; oversight over the
execution of judicial decisions; control over
the constitutionality of normative legal acts
adopted by public authorities; supervision
over the legality of the activities of executive
bodies; institutional review of legality of the
courts` activities.
According to the above, the following
conclusions can be made:
(a)
The independence of judiciary is ensured
not only by the process of administration
of a fair trial by judiciary, but also by the
exercise of a special review functions,
which demonstrate distinct power of
judiciary in the administration of justice in a
society. This is because the effectiveness of
the judiciary depends not on the volume of
cases decided by them, but on the
enforceability of those decisions; the
observance of human rights and freedoms,
as well as the insurance of the rule of law
by other branches of state power.
Achieving this goal without judicial review
is an impossible task. Therefore, the need
for judicial review is social in nature, and its
necessity is determined by: a) ensuring the
independence of judiciary through self-
8
Umarova
M.A.
Mexanizm
sudebnogo
kontrolya: obshchetereticheskoe issedovanie.
Dissertatsiya na KYUN (2018).
The USA Journals Volume 03 Issue 06-2021
73
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
67-73
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-10
I
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F
ACTOR
2021:
5.
952
control of the courts; (b) ensuring that the
constitutional rights and freedoms of
citizens and legal entities are protected by
impartial courts; c) guaranteeing the rule
of law and justice in a society; (d)
maintaining checks and balances between
authorities; e) coercion of citizens to obey
the law and to respect the rights and
freedoms of each other.
(b)
The main purpose of judicial review is to
prevent violations of rights and freedoms
of citizens and legal entities, to restore the
violated rights, to ensure the right of every
person to a fair trial, and to uphold the rule
of law in a society.
(c)
In order to ensure the effectiveness of
judicial review, it is necessary to improve
the existing legislation on order to
eliminate inconsistencies and gaps. In
particular, it is necessary to development
the concept of "judicial review", followed
by working on the legislation governing
this activity, by taking into account the
specific characteristics of the subject and
objects
in
the
process
of
its
implementation, and forming the single
legal framework for the implementation of
judicial review.
(d)
Based on the experience of foreign states,
it is recommended to extend the power of
Constitutional Court of reviewing the
legality and constitutionality of not only
adopted normative and legal acts, but also
those, which are expected to be adopted.
REFERENCES
1.
Odilqoriev
H.T.,
Qosimov
B.E
,
Administrative law. Textbook. (2010) p.
448. Khojiev E., Khojiev T., Administrative
law. Textbook. (2008) p.317-318.
2.
Mirazov D.M. Control and supervision in
the preliminary investigation: Historical,
organizational and procedural aspects:
Monograph. (Academy of the Ministry of
Internal Affairs of the Republic of
Uzbekistan, 2015) p. 72.
3.
Annotated dictionary of the Uzbek
language: "National encyclopedia of
Uzbekistan" (State Scientific Publishing
House, 2006).
4.
Legal Encyclopedia of Uzbekistan. (Adolat,
2010) p. 328.
5.
Savyuk L.K. Law enforcement agencies,
(2007) p. 86-88; Kolokolov N.A. Judicial
control at the stage of preliminary
investigation (2004) p. 16-27.
6.
Umarova M.A. The mechanism of judicial
control: a general theoretical study.
Dissertation at KYHN. (2018).
7.
https://lex.uz/docs/68532.
8.
Umarova M.A. Mexanizm sudebnogo
kontrolya:
obshchetereticheskoe
issedovanie. Dissertatsiya na KYUN (2018).
