Judicial Review of Administrative Discretion in the Era of Populism: Safeguarding Checks and Balances

Abstract

This article seeks to investigate the evolving forms and patterns of modern populist rule, how such patterns are subverting the institutional constraint on administrative discretion afforded by judicial review, and in light of such analysis, to identify what new forms of doctrines can be adopted or developed to re-enforce constraints over arbitrary exercises of administrative discretion in the populist context. Drawing on India, Hungary, Turkey, and Brazil, this paper argues populist rulers weaponize administrative discretion to undermine courts, proposing a reconceptualized "separation of checks and balances" doctrine to preserve judicial oversight and rule of law.