When the court applies strict scrutiny What must the Government show?
To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. The case of ROE V. WADE, 410 U.S. 113, 93 S.
What level of scrutiny is required for a suspect class?
Overview. Under Equal Protection, when a statute discriminates against an individual based on a suspect classification, that statute will be subject to either strict scrutiny or intermediate scrutiny. There are four generally agreed-upon suspect classifications: race, religion, national origin, and alienage.
Who has the burden of proof in rational basis test?
The BURDEN OF PROOF is on the party making the challenge to show that the law or policy is unconstitutional. To meet this burden, the party must demonstrate that the law or policy does not have a rational basis.
What standard of review is used in Lawrence v Texas?
The Court did not speak of private sexual activity as a fundamental right that might require the highest “strict scrutiny” standard of judicial review. Instead, it focused on why the Court’s decision in Bowers v. Hardwick was wrong.
What is the proportionality test in law?
In the test of Proportionality the “courts will quash exercise of discretionary powers in which there is no reasonable relation between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to …
What is the principle of legality?
The principle of legality, in criminal law, means that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). According to that principle, an offence must be clearly defined in the law.
What is the principle of legality in South Africa?
Primarily, the principle of legality is a convenient way of requiring all exercises of public power – including non-administrative action – to conform to certain accepted minimum standards. It is thus also a way of overcoming the all-or-nothing results that are dictated by the use of threshold concepts.
What are the basic principles of administrative law?
In this context, the basic principles of administrative law are the judicial review of administrative action, prevention of misuse or abuse of power, and provisions for suitable remedies.
What are the ground for judicial review?
There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality. A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance because Parliament gave them less discretion than they thought.
What is Section 33 of the Constitution?
Section 33 of the Constitution: ‘Just administrative action: 1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
Has section 33 been given effect?
As we have seen, section 33 of the Constitution required Parliament to pass such an Act. The PAJA was passed to “give effect” to the rights in the Constitution – that is, to make them work in practice. The rights in section 33 are very briefly and simply worded. Now, the Constitution has been supplemented by the Act.
What does Section 24 of the Constitution say?
Section 24 now enshrines environmental rights in South Africa. The State is prohibited from infringing on the right to environmental protection and is further required to provide protection against any harmful conduct towards the environment.