Everything about Judicial Review totally explained
Judicial review is the power of the judiciary to annul the acts of the executive or the legislative where it finds them incompatible with a higher norm. Judicial review is an example of the functioning of
separation of powers in a modern legal system. This principle is interpreted differently in different jurisdictions, which also recognise different hierarchy of legal norms. As a result, the procedure and scope of judicial review differs from country to country.
General
Judicial review of administrative acts
Most modern legal systems allow the courts to review administrative acts, for example individual decisions of public body, for example a decision to grant a subsidy or to withdraw a residence permit. Certain legal systems, most notably France and Germany, have implemented a system of
administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration. In other countries, for example the United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialised panels within these courts, such as the Administrative Court within the
High Court of England and Wales. It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions, such as a complaint to the authority itself must be fulfilled.
In most countries, the courts apply a special procedure in administrative cases
Judicial review of legislation
In American legal language, the term "judicial review" usually refers to the review of the
constitutionality of legislation by the Federal courts or the
Supreme Court of the United States. However, many legal systems specifically don't allow any review of
primary legislation, passed by parliament. In the United Kingdom, statutes can't be set aside under the doctrine of Sovereignty of Parliament. Another example is the Netherlands, where the Constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.
Many of the countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special constitutional courts that have the exclusive authority to deal with this issue: see
List of constitutional courts.
Specific jurisdictions
England and Wales
Judicial review is a procedure in English
administrative law by which English courts supervise the exercise of public power. A person who feels that an exercise of such power by, say, a government minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the
Administrative Court (a division of the
High Court) for judicial review of the decision. If the application for judicial review is successful, the Court may set aside (quash) the unlawful act. In certain limited circumstances, the
Claimant may be able to obtain damages. A court may also make a mandatory or prohibitory order or an injunction to compel the authority to act lawfully or to stop it from acting unlawfully.
Unlike the United States and some other jurisdictions, English law doesn't know judicial review of
primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to
EU law (see
Factortame). Although the Courts can review primary legislation to determine its compatibility with the
Human Rights Act 1998, they've no power to quash or suspend the operation of an enactment which is found to be incompatible with the
European Convention of Human Rights - they can merely declare that they've found the enactment to be incompatible.
Scotland
The power of judicial review of all actions of administrative bodies in
Scotland (including the
Scottish Parliament) is held by the
Court of Session. The procedure is governed by
Chapter 58 of the Rules of Court
. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay on the part of the pursuer the court may exercise its discretion and refuse to grant review. Despite the procedural differences the substantive law regarding the grounds of judicial review in Scotland is the same as that in England and Wales with decisions in one jurisdiction regarded as highly persuasive in the other. Readers are referred to
Judicial review in English Law for further detail on the grounds of review. Generally, it's confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision maker could have reached it (so-called
Wednesbury unreasonableness). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the
Human Rights Act 1998. About six hundred judicial review cases are raised every year; most are settled by agreement with only a small minority having to be decided by the court.
Republic of Ireland
Judicial review in Ireland is way for the
Supreme Court to supervise the
Oireachtas to make sure that legislation doesn't conflict with the Constitution.
Malaysia
Although
Malaysia inherited the political system of
British India based on the
Westminster system which made no provision for judicial review, the
Federal Constitution of Malaysia instituted a system based on that of
India which was in turn influenced by other constitutions including that of the
United States. Judges are empowered to declare laws or executive actions
ultra vires if they clashed with the Constitution and/or the parent legislation. However, this power was curbed after the
1988 Malaysian constitutional crisis by then
Prime Minister Mahathir bin Mohamad through amendments to the Federal Constitution. A particularly significant amendment was the removal of the judicial power and subjecting the judiciary to such jurisdiction and powers as may be conferred by or under federal law. The merits of detentions made under the
Internal Security Act are also not subject to judicial review, but the procedures are.
Switzerland
Article 190 of the
Swiss Federal Constitution states that federal statutes and international law are binding on the Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but will, where possible, construe statutes so as not to create a conflict with the Constitution. The courts can suspend the application of federal statutes that conflict with international law, but tend to exercise this power cautiously and deferentially: In
Schubert (BGE 99 Ib 39), the Federal Supreme Court refused to do so because Parliament had consciously violated international law in drafting the statute at issue.
The reason traditionally given for the lack of judicial review is the Swiss system of popular
democracy: If 50,000 citizens so demand, any new statute is made subject to a popular
referendum. In this sense, it's the people themselves that exercise review.
The situation described above for Swiss federal law applies
mutatis mutandis to the constitutional and legal systems of the individual
cantons. However, owing to the derogatory power of federal law, federal courts as a matter of course exercise judicial review on cantonal law, as well as on federal executive law (ordinances, executive orders etc.).
United States
The Constitution states in
Article III that:
Marbury v. Madison, the basis for the exercise of judicial review in the United States, is an interpretation of the Constitution as applying to the law and politics of government. It implies the power of federal courts to consider or overturn any congressional and state legislation or other official governmental action deemed inconsistent with the Constitution,
Bill of Rights, or
federal law.
Opponents of judicial review have charged that the Supreme Court's power to invalidate federal and state laws or actions has no counterpart in common or civil law, and has no textual basis in the United States Constitution. The law of the United States derives in great part from the
common law traditions the colonies inherited from Britain, which arguably have vested the power of judicial review in the people since the signing of the
Magna Carta in
1215.
Proponents of the doctrine argue that while it's true that judicial review isn't mentioned in the Constitution, it's likewise true that the Constitution makes no explicit mention of the
adversarial system,
stare decisis, or virtually any other aspect of the
common law. The argument is therefore made that these concepts were necessarily implicit in what the Framers understood by the term "the judicial power," and therefore should govern the Constitution's interpretation.
See Barnett,
The Original Meaning of the Judicial Power.
It is for these reasons that
Article 39 opponents contend that the Anglo-American tradition establishes the concept of the jury as the regulating body in legal matters, rather than the government itself. However this criticism of the Supreme Court's jurisprudence has never been articulated by any U.S. court and is disputed by the United States legal establishment for the following reasons.
While American constitutional law derives many of its forms and traditions from the common law, it's important to note that the constitutional order of the United States was very different from that of the United Kingdom. As the
Marbury court observed, the Constitution's written nature and formal enumeration of the powers of government would be empty promises if there were no means to measure the actions of the government against the Constitution, and strike down those found wanting (
see Marbury, supra, at 177) ("
[c]ertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void"). It is the predominant view in United States constitutional jurisprudence that, because Magna Carta is only the distant progenitor of the
Due Process clauses, it's far from vesting judicial review in United States juries. In any event, and as a practical matter, the "final authority" regarding the United States Constitution isn't the Supreme Court but the political will of the people, acting through the powers granted them by way of the Article V amendment powers (for example, amendments are either proposed by Congress or by way of constitutional convention mandated by the state legislatures)
Philippines
As early as 1936, the
Philippine Supreme Court had unequivocally asserted its constitutional authority to engage in judicial review. This power was affirmed in the Supreme Court decision in
Angara v. Electoral Commission,
63 Phil. 139 (1936). Nonetheless, the Supreme Court would, in the next several decades, often decline to exercise judicial review by invoking the
political question doctrine. In 1987, the constitutional convention tasked to draft a new charter decided to provide for a definition of “judicial power” as a means of inhibiting the Court from frequent resort to the political question doctrine. Hence, Section 1, Article VIII of the
1987 Constitution states in part that:
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
See also:
Further Information
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