The natural death of the Supreme Judicial Commission of Bangladesh and the consequent patronage appointments to the Bench: advocating the establishment of an Independent Judicial Commission

In order to strengthen the constitutional process of appointment of judges in Superior Courts, Bangladesh established a Supreme Judicial Commission in 2008 by promulgating an Ordinance. This Ordinance was neither promulgated in pursuance of any provisions of the Constitution nor by introducing any amendment to the provisions of the Constitution. The recommendations of the Commission were not given binding force on the executive. The power of the executive to accept or reject the candidates recommended by the Supreme Judicial Commission at his pleasure defeated the very objective of establishing the Commission for appointing the most competent and suitable persons as judges of the superior courts in Bangladesh. However, following the general elections held on 29 December 2008, the newly elected Government of Bangladesh Awami League dispensed with the Supreme Judicial Commission by not placing the Supreme Judicial Commission Ordinance before the parliament for its approval. This resulted in restoring the previous system of appointing judges on the satisfaction of the executive, which has resulted in patronage appointments. Thus, the establishment of an independent judicial commission in Bangladesh is an imperative necessity for strengthening the independence and impartiality of the judiciary.

The establishment of the Judicial Appointments Commission in Malaysia to improve the constitutional method of appointing the judges of the superior courts : a critical study

The Judicial Appointments Commission was established in Malaysia in 2009 to ensure unbiased selection of judicial candidates for the consideration of the Prime Minister, who has the final say regarding the appointment of judges to the superior courts. But the provisions concerning Prime Minister’s power to appoint the majority of the members of the Commission and his unfettered power of removing four of the five appointed members without assigning any reason, have calculatedly been devised for ensuring the selection of judicial candidates having right political patronage in accordance with the covert wishes of the Prime Minister. Furthermore, the Prime Minister’s power of rejecting the Commission’s recommendations of multiple candidates renders the undertaking of a lengthy process of selection unproductive and useless. Thus the Judicial Appointments Commission has become a superfluous body with an ineffective modus operandi to attain the stipulated objectives of improving and complementing the constitutional method of appointing judges to the superior courts. Since the Federal Constitution of Malaysia has not empowered the Parliament to enact a law providing for the establishment of a Judicial Appointments Commission, it also appears that the Judicial Appointments Commission Act 2009 is an invalid piece of legislation.

Cross-border insolvency law and multinational enterprise groups: judicial Innovation as an international solution

The Article argues that courts confronting the effects of multinational enterprise insolvency must undertake a pragmatic incursion into the separate entity doctrine. This argument is premised on gaps in the current Model Law which confers significant discretion on the courts. Our research shows that courts have fashioned innovative solutions to fill the gaps and thatgreater recognition of the legitimacy of these judicial incursions into the separate entity doctrine would facilitate the reduction of transaction costs in the case of multinational group insolvencies. We identify criteriawhereby a court would be able to determine that the inherentseparateness of the corporate structure should be disregarded andthe group regarded as one.

Exploring judicial opinion on the relationship between anabolic-androgenic steroid use and violent offending

Research suggests that there is a link between the use of anabolic-androgenic steroids (AAS) and violence, though this link may be moderated by other substance use such as alcohol. Violent acts in the nighttime economy in recent times has led to governments adopting a law enforcement approach. This study sought to investigate whether the judicial system considers that there is a link between AAS use and violence. Sentencing decisions in Victoria, Australia, were identified using three publically available case law databases. Of the six cases identified, three cases had some mention of a potential link between AAS use and violent offending; however, it appears that evidence of AAS use had neither an aggravating nor mitigating effect on sentencing. In all six cases, a history of other substance use had more of an impacting upon sentencing. Harm reduction approaches should be adopted to reduce violence related to any substance use, including AAS.

Examining the approaches to diminish judicial intervention in statutory adjudication in Australia

In Australia, statutory construction adjudication is a fast payment dispute resolution process designed to keep the cash flowing down the hierarchical contractual chain in construction projects. Its rapid, highly regulatory and temporarily binding nature have led to it being often described as a ‘quick and dirty’ process that delivers ‘rough and ready’ justice. Adjudicators often have to grapple with complex legal issues related to jurisdictional facts and interpretation of contract provisions, though the majority of them are not legally trained. This has often led to a poor quality of adjudication outcome for large and complex payment claims which has, in turn, led to a mounting dissatisfaction due to the many judicial challenges to adjudicators’ determinations seen in recent years. The evolving tension between the object of the security of payment legislation and excessive involvement of the courts has often been the subject of comment by the judiciary. This paper aims to examine the legislative and judicial approaches to support the object of the security of payment legislation to ease cash flow. The paper adopts a desktop study approach whereby evidence is gathered from three primary sources – judicial decisions, academic publications and governmental reports. The paper concludes that there is a need to adopt other measures which can provide more convenient relief to aggrieved parties to an adjudication process, such that the adjudication process is kept away from the courts as far as is possible. Specifically, it is proposed that a well-designed expanded legislative review scheme of allegedly flawed adjudication, based on that provided in the Western Australian legislation, might stand as a promising remedy to eliminate the evolving tension.

What do you do with a High Court decision you don’t like? Legislative, judicial and academic responses to Gambotto v WCP Ltd

The decision of the High Court of Australia in Gambotto v WCP Ltd wasboth controversial and widely debated. Some saw the decision as radically altering the balance of power in corporate law by granting minority shareholders extensive new powers to prevent the compulsory acquisition of their shares and thereby impeding commercial transactions that would benefit companies. There was also concern that the principles developed by the High Court for compulsory acquisition of shares undertaken by way of amendment of the corporate constitution would apply to other forms of compulsory acquisition, and corporate law more generally, again impeding many types of corporate transactions.We analyse the responses to the High Court decision. The decision had the potential to have a significant influence on Australian corporate law and the way corporate transactions involving compulsory share acquisitions are conducted. In particular, Gambotto was considered in more than 50 subsequent judgments giving many judges the opportunity to extend the Gambotto principles into new areas.We show that the responses to Gambotto were largely negative. Initial commentary in themedia and subsequent academic commentary was mostly critical. Almost uniformly, courts decided that the principles should not be extended.Parliament responded by enacting new provisions in the corporationslegislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliamentresponded to a decision they did not like — a decision that had the potential to have major implications for corporate law and commercial transactions.We also analyse Gambotto by placing it in the broader political context ofthe role of the High Court at the time of the decision. Gambotto was decided when the High Court was in a period of unprecedented judicial activism.Subsequently, the High Court retreated from this judicial activism and weobserve similarities in how other courts restricted the application ofGambotto.

Towards diminishing judicial intervention in statutory adjudication: a pragmatic proposal

Statutory adjudication was introduced into the Security of Payment (SOP) legislation as a fast-track payment dispute resolution process aiming to achieve the object of the legislation to facilitate cash flow within the construction contractual chain. As such, adjudication determinations were usually released and enforced on a "pay now, argue later" 1 basis in order to protect a vulnerable class of smaller businesses within the building and construction industry. The SOP legislation was extremely successful in attaining the stated object in the context of small adjudicated payment claims where both parties used to comply with the adjudication determination.