Judicial review

Judicial Review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of several branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

General

Judicial review of administrative acts

Most modern legal systems allow the courts to review administrative acts, i.e. individual decisions of public body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain governmental systems, most notably in 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, e.g. the United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialized 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 special procedures 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 both federal and state courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary legislation, passed by parliament. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. 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

Canada

Until 1982, Canada had parliamentary sovereignty like the United Kingdom, wherein the Supreme Court of Canada could only overturn acts of Parliament if those acts violated the division of powers between the federal and provincial levels of government. With the introduction of the Charter of Rights and Freedoms in 1982, Canadian courts gained the power to overturn primary legislation, a change that would have sweeping effects on both the operation of the Canadian government and on the relationship between the people and the government. While the Constitution of Canada does have provisions that can allow the government to ignore a judicial ruling, such as the Notwithstanding Clause, such powers are rarely used, and in most cases they are politically very unpopular.

Germany

The constitution of the Federal Republic of Germany establishes a separate Federal Constitutional Court of Germany that is empowered with reviewing acts of the Federal Republic Congress (the Bundestag) for their constitutionality. Other countries also have a separate court for this purpose. These are separate Supreme Courts that do not deal with appellate cases in civil and criminal law - but rather, just in constitutional cases. The Federal Constitutional Court of Germany can even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution. This goes beyond even the powers of the Supreme Court of the United States, and the Supreme Court of Canada.

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.

The 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 formed to draft a new charter decided to provide for a definition of "judicial power" as a means of inhibiting the Supreme Court from frequently resorting 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.

Hong Kong

Hong Kong, formerly a British colony, became part of the People's Republic of China on 1 July 1997. The Basic Law, as agreed between the British and the China Governments, became the constitutional document of Hong Kong. The Basic Law provides that the previous law in force in Hong Kong, including Common Law, will be preserved, forming a Special Administrative Region (SAR). Thus, Judicial Review, as part of the Common Law, is also preserved. Article 35 of the Basic Law expressly provides the right of citizen to review executive acts in the court of law. Under the Basic Law, the court of Hong Kong is also delegated with the power to interprete the Basic Law. Thus, it is recognised by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law.

Like the United States, Hong Kong courts also held that they may review as to whether legislation passed by the legislature are in compliance with the Basic Law. This is different from the situations in UK where the court may have no such jurisdiction under the traditional doctrine of supremacy of parliament. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.

The Republic of Ireland

Judicial review in Ireland is way for the Supreme Court to supervise the Oireachtas to make sure that legislation does not conflict with the Constitution.

Sweden

The Constitution of Sweden (Ch. 11, § 14) provides for judicial review by all courts of the land, whether they be general or administrative courts. However, a court is able to declare an act passed by the Riksdag or an ordinance promulgated by the Government as being in violation of higher law (the Constitution, and, in the case of Government ordinances, laws passed by the Riksdag) and thus inapplicable only if the error is "manifest". This "requirement of manifestness" (uppenbarhetsrekvisitet) may, however, be removed as a result of a review of the Constitution which is currently underway. It has also become increasingly less relevant as many cases (such as the Åke Green case) are decided with primary reference to the European Convention rather than with reference to the rights provided by the Constitution itself. (Since 1994, the Constitution stipulates that no law or other regulation may violate the European Convention (Ch. 2, § 23).) Traditionally, a more important check on the ability of the Riksdag to pass laws in violation of the rights provided by the Constitution has been the judicial preview exercised by the Council on Legislation, which, while not binding on the Riksdag, is nevertheless often respected.

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 is 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.).

The United Kingdom

England and Wales

Main article: Judicial review in English Law

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 in the United States and some other jurisdictions, English law does not recognize 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 have 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 have 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 a review. Despite the procedural differences, the substantive laws regarding the grounds of judicial review in Scotland are the same as in England and Wales, with decisions in one jurisdiction regarded as highly persuasive in the other. There is, however, one substantial difference in Scotland since there is no distinction between review of a public body and a private body, which is different from in England, where review is only possible in the case of a public body or a quasi-public body (West v. Secretary of State for Scotland). Readers are referred to Judicial review in English Law for further detail on the grounds of review. Generally, it is 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, but most are settled by agreement with only a small minority having to be decided by the court.

The United States

Main article: Judicial review in the United States

The Constitution states in Article III that:

The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…

The legal case 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 is true that judicial review is not mentioned in the Constitution, it is likewise true that the Constitution makes no explicit mention of the adversarial system, stare decisis, or virtually any other specific 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.

There is an arguable case that while judicial review is not explicitly written into the Constitution, it could be implied by the provision in Article Six,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land...

which would imply that the laws of the United States which are not in pursuance to the Constitution are not the supreme law of the land. The remainder of Article Six

and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

clearly means that a State law or state Constitutional provision in contravention to Federal law (which is in pursuance to the Constitution of the United States) or to the Constitution is invalid, and that the Constitution implies that judges are the proper authority to find a provision unconstitutional, and this power could equally apply to a Federal law which is not in pursuance to the Constitution.

It is for these reasons that the so-called 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 it 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 is important to note that the constitutional order of the United States was very different from that of the United Kingdom. As the Marbury vs. Madison Supreme Court observed, the Constitution's written nature, and the 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 the Magna Carta is only the distant progenitor of the Due Process clauses, the Constitution is 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 is not the Supreme Court but the political will of the people, acting through the powers granted them by way of the Article V amendment powers (i.e., amendments are either proposed by Congress or by way of constitutional convention mandated by the state legislatures. Then they are either approved or rejected by 3/4 of the states through representatives of the people.)

See also:

See also

• Judicial Review in English Law
• Judicial interpretation
• Discretionary review

External links

• Criticisms of Judicial Review Procedures