|Grounds for judicial review|
| Administrative law in|
common law jurisdictions
| Administrative law in|
civil law jurisdictions
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. : 79 In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
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Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil law and common law, and also by two distinct theories of democracy regarding the manner in which government should be organized with respect to the principles and doctrines of legislative supremacy and the separation of powers.
First, two distinct legal systems, civil law and common law, have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition, judges are seen as those who apply the law, with no power to create (or destroy) legal principles.
Secondly, the idea of separation of powers is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by Montesquieu;it was later institutionalized in the United States by the Supreme Court's ruling in Marbury v. Madison that the court had the power of judicial review to enforce the separation of powers stated in the US Constitution. This was left uncontested by the U.S. Congress and president Thomas Jefferson, despite his expressed opposition to the principle of judicial review by an unelected body.
Separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without due process of law; each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. The key to this idea is checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary.
Differences in organizing democratic societies led to different views regarding judicial review, with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review.[ citation needed ] Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have gradually adopted or expanded the scope of judicial review, including countries from both the civil law and common law traditions.
Another reason why judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy (legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation. Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, judges in the United Kingdom do not have the power to strike down primary legislation. However, when the United Kingdom became a member of the European Union there was tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the Court of Justice of the European Union the power of judicial review.
When carrying out judicial review a court may ensure that the principle of ultra vires are followed, that a public body's actions do not exceed the powers given to them by legislation. : 23
The decisions of administrative acts by public bodies under judicial review are not necessarily controlled in the same way that judicial decisions are, rather a court will enforce that principles of procedural fairness are followed when making judicial decisions. : 38
Most modern legal systems allow the courts to review administrative "acts" (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration, regardless these courts are part of administration (France) or judiciary (Germany). In other countries (including the United States and United Kingdom), 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). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). 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.
There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature.
Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, Acts of Parliament cannot be set aside under the doctrine of parliamentary sovereignty, whereas Orders in Council, another type of primary legislation not passed by Parliament, can (see Council of Civil Service Unions v Minister for the Civil Service (1985) and Miller/Cherry (2019)). Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation passed by the Dutch legislature or States-General .
In countries which have inherited the English common law system of courts of general jurisdiction, judicial review is generally done by those courts, rather than specialised courts. Australia, Canada and the United States are all examples of this approach.
In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation by a process of judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of the constitutionality of statutes, especially by the Supreme Court of the United States. Courts in the United States may also invoke judicial review in order to ensure that a statute is not depriving individuals of their constitutional rights.This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803.
Judicial review in Canada and Australia pre-dates their establishment as countries, in 1867 and 1901, respectively. The British Colonial Laws Validity Act 1865 provided that a British colony could not enact laws which altered provisions of British laws which applied directly to the colony. Since the constitutions of Canada and Australia were enacted by the British Parliament, laws passed by governments in Australia and Canada had to be consistent with those constitutional provisions. More recently, the principle of judicial review flows from supremacy clauses in their constitutions.In Australia, the term 'judicial review' generally refers to reviews of the lawfulness of the actions of the executive and the public service, while reviews of the compatibility of laws with the Australian Constitution is known as characterisation or constitutional challenges.
In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court as written by Hans Kelsen, a leading jurist of the time. This system was also adopted the same time by Austria and became known as the Austrian System , also under the primary authorship of Hans Kelsen, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court.
Russia adopts a mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the law's adequacy to the Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be followed by judges and government officials at all levels.
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The below table compares the approach of different countries to constitutional review or judicial review as of 2010.
|Country||Constitutional Court||High Court||Constitutional Council|
|Antigua and Barbuda||HC-AM|
|Bosnia and Herzegovina||CC-EM|
|Central African Republic||CC-EM|
|People's Republic of China (PRC)||none|
|Democratic Republic of the Congo||HC-EM|
|Republic of the Congo||other|
[ dubious ]
|North Korea (DPRK)||none|
|Papua New Guinea||HC-AM|
|Saint Kitts and Nevis||HC-AM|
|Saint Vincent and the Grenadines||HC-AM|
|São Tomé and Príncipe||other|
|Taiwan (Republic of China, ROC)||HC-MX|
|Trinidad and Tobago||HC-AM|
|United Arab Emirates||other|
Administrative law is a division of law governing the activities of executive branch agencies of government. Administrative law includes executive branch rule making, adjudication, and the enforcement of laws. Administrative law is considered a branch of public law.
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.
Separation of powers refers to the division of a state's government into "branches", each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in monarchies, but also parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative.
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.
The United Kingdom has three legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English and Welsh law, Scots law, Northern Ireland law, and, since 2007, calls for a fourth type that of purely Welsh law as a result of Welsh devolution, with further calls for a Welsh justice system.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the drafting of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.
Ultra vires is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is intra vires. Acts that are intra vires may equivalently be termed "valid", and those that are ultra vires termed "invalid".
The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is the same across the states and territories.
The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.
The Constitution of the Republic of Singapore is the supreme law of Singapore. A written constitution, the text which took effect on 9 August 1965 is derived from the Constitution of the State of Singapore 1963, provisions of the Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965, and the Republic of Singapore Independence Act itself. The text of the Constitution is one of the legally binding sources of constitutional law in Singapore, the others being judicial interpretations of the Constitution, and certain other statutes. Non-binding sources are influences on constitutional law such as soft law, constitutional conventions, and public international law.
French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
The persona designata doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the judge personally, as opposed to powers having been conferred on the court. The doctrine in the more general sense has been recognised throughout the common law countries. Persona designata, according to Black's Law Dictionary, means "A person considered as an individual rather than as a member of a class"; thus it may be a person specifically named or identified in a lawsuit, as opposed to the one belonging to an identified category or group. While it has its origin in Montesquieu's doctrine of the separation of powers, it can be traced back as far as Aristotle's Politics.
The legal system of Azerbaijan is based on civil law. As the country was a republic of the Soviet Union until 1991, its legal history has also been influenced heavily by socialist law. However, after the collapse of the Soviet Union, Azerbaijan became independent by enactment of the constitutional act of national independence on October 18, 1991. Azerbaijan started reformation of the legal system by the establishing of democratic reforms. This was followed by the adoption of the first Constitution in 1995 which is the foundation of the legislative system of the modern country. The Constitution creates the system of presidential republic with a separation of powers among the Legislative, Executive and Judicial branches of the government in order to prevent abuse of power.
The concept of the separation of powers has been applied to the United Kingdom and the nature of its executive, judicial and legislative functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.
The Separation of powers in Singapore is governed by Constitution of the Republic of Singapore, which splits the power to govern the country between three branches of government – the parliament, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subject to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.
South African administrative law is the branch of public law which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.
Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules, but may delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.
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