Judicial review

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The High Court of Australia. Under the Constitution of Australia, the judiciary forms part of the separation of powers, with executive or legislative actions subject to review by the judiciary. Laws, acts and governmental actions that are incompatible with a higher authority (e.g. the Constitution) can be reviewed and overturned High Court of Australia (6769096715).jpg
The High Court of Australia. Under the Constitution of Australia, the judiciary forms part of the separation of powers, with executive or legislative actions subject to review by the judiciary. Laws, acts and governmental actions that are incompatible with a higher authority (e.g. the Constitution) can be reviewed and overturned

Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. [1] :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.


General principles

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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid.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; [2] 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.

Principles of 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. [1] :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. [1] :38


Review of administrative acts and secondary legislation

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.

Review of primary legislation

There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature.

No review by any courts

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 . [3]

Review by general courts

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. [4] 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. [5] In Australia, the term 'judicial review' generally refers to reviews of the lawfulness of the actions of the executive and the public service, [6] while reviews of the compatibility of laws with the Australian Constitution is known as characterisation or constitutional challenges. [7]

Review by a specialized court

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. [8]

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.

By country

The below table compares the approach of different countries to constitutional review or judicial review as of 2010. [9]

CountryConstitutional CourtHigh CourtConstitutional Council
Other form or
limited review
No judicial review
[ definition needed ]
Flag of the Taliban.svg  Afghanistan none
Flag of Albania.svg  Albania CC-EM
Flag of Algeria.svg  Algeria CN-FM
Flag of Andorra.svg  Andorra CC-EM
Flag of Angola.svg  Angola CC-EM
Flag of Antigua and Barbuda.svg  Antigua and Barbuda HC-AM
Flag of Argentina.svg  Argentina HC-AM
Flag of Armenia.svg  Armenia CC-EM
Flag of Australia (converted).svg  Australia other
Flag of Austria.svg  Austria CC-EM
Flag of Azerbaijan.svg  Azerbaijan CC-EM
Flag of the Bahamas.svg  Bahamas HC-AM
Flag of Bahrain.svg  Bahrain none
Flag of Bangladesh.svg  Bangladesh HC-AM
Flag of Barbados.svg  Barbados HC-AM
Flag of Belarus.svg  Belarus CC-EM
Flag of Belgium (civil).svg  Belgium HC-EM
Flag of Belize.svg  Belize HC-AM
Flag of Benin.svg  Benin CC-EM
Flag of Bhutan.svg  Bhutan
Bandera de Bolivia (Estado).svg  Bolivia HC-AM
Flag of Bosnia and Herzegovina.svg  Bosnia and Herzegovina CC-EM
Flag of Botswana.svg  Botswana HC-AM
Flag of Brazil.svg  Brazil HC-MX
Flag of Brunei.svg  Brunei none
Flag of Bulgaria.svg  Bulgaria CC-EM
Flag of Burkina Faso.svg  Burkina Faso HC-EM
Flag of Burundi.svg  Burundi CC-EM
Flag of Cambodia.svg  Cambodia CN-EM
Flag of Cameroon.svg  Cameroon HC-EM
Flag of Canada (Pantone).svg  Canada HC-MX
Flag of Cape Verde.svg  Cape Verde HC-MX
Flag of the Central African Republic.svg  Central African Republic CC-EM
Flag of Chad.svg  Chad HC-EM
Flag of Chile.svg  Chile CC-EM
Flag of the People's Republic of China.svg  People's Republic of China (PRC)none
Flag of Colombia.svg  Colombia CC-MX
Flag of the Comoros.svg  Comoros CN-FM
Flag of the Democratic Republic of the Congo.svg  Democratic Republic of the Congo HC-EM
Flag of the Republic of the Congo.svg  Republic of the Congo other
Flag of Costa Rica.svg  Costa Rica HC-EM
Flag of Croatia.svg  Croatia CC-EM
Flag of Cuba.svg  Cuba none
Flag of Cyprus.svg  Cyprus HC-AM
Flag of the Czech Republic.svg  Czech Republic CC-EM
Flag of Denmark.svg  Denmark HC-AM
Flag of Djibouti.svg  Djibouti CN-FM
Flag of Dominica.svg  Dominica HC-AM
Flag of the Dominican Republic.svg  Dominican Republic HC-AM
Flag of East Timor.svg  East Timor
Flag of Ecuador.svg  Ecuador CC-MX
Flag of Egypt.svg  Egypt CC-EM
Flag of El Salvador.svg  El Salvador HC-MX
Flag of Equatorial Guinea.svg  Equatorial Guinea CC-EM
Flag of Eritrea.svg  Eritrea HC-EM
Flag of Estonia.svg  Estonia HC-AM
Flag of Ethiopia.svg  Ethiopia other
Flag of Fiji.svg  Fiji other
Flag of Finland.svg  Finland other
Flag of France.svg  France CN-FM
Flag of Gabon.svg  Gabon CC-EM
Flag of The Gambia.svg  Gambia HC-AM
Flag of Georgia.svg  Georgia HC-AM
Flag of Germany.svg  Germany CC-EM
Flag of Ghana.svg  Ghana HC-AM
Flag of Greece.svg  Greece HC-MX
Flag of Grenada.svg  Grenada HC-AM
Flag of Guatemala.svg  Guatemala CC-MX
Flag of Guinea.svg  Guinea HC-AM
Flag of Guinea-Bissau.svg  Guinea-Bissau none
Flag of Guyana.svg  Guyana HC-AM
Flag of Haiti.svg  Haiti HC-AM
Flag of Honduras.svg  Honduras HC-MX
Flag of Hong Kong.svg  Hong Kong other
Flag of Hungary.svg  Hungary CC-EM
Flag of Iceland.svg  Iceland HC-EM
Flag of India.svg  India HC-AM
Flag of Indonesia.svg  Indonesia HC-MX
Flag of Iran.svg  Iran CN-FM
Flag of Iraq.svg  Iraq none
Flag of Ireland.svg  Ireland HC-AM
Flag of Israel.svg  Israel HC-AM
Flag of Italy.svg  Italy CC-EM
Flag of Cote d'Ivoire.svg  Ivory Coast CN-FM
Flag of Jamaica.svg  Jamaica HC-AM
Flag of Japan.svg  Japan HC-AM
Flag of Jordan.svg  Jordan
Flag of Kazakhstan.svg  Kazakhstan CN-EM
Flag of Kenya.svg  Kenya HC-AM
Flag of Kiribati.svg  Kiribati HC-AM
Flag of Kosovo.svg  Kosovo HC-EM
Flag of Kuwait.svg  Kuwait none
Flag of Kyrgyzstan.svg  Kyrgyzstan CC-EM
Flag of Laos.svg  Laos none
Flag of Latvia.svg  Latvia CC-EM
Flag of Lebanon.svg  Lebanon CN-EM
Flag of Lesotho.svg  Lesotho none
Flag of Liberia.svg  Liberia none
Flag of Libya.svg  Libya none
Flag of Liechtenstein.svg  Liechtenstein HC-EM
Flag of Lithuania.svg  Lithuania CC-EM
Flag of Luxembourg.svg  Luxembourg CC-EM
Flag of North Macedonia.svg  Macedonia CC-EM
Flag of Madagascar.svg  Madagascar CC-EM
Flag of Malaysia.svg  Malaysia HC-AM
Flag of Malawi.svg  Malawi HC-AM
Flag of Maldives.svg  Maldives none
Flag of Mali.svg  Mali CC-EM
Flag of Malta.svg  Malta CC-EM
Flag of the Marshall Islands.svg  Marshall Islands HC-AM
Flag of Mauritania.svg  Mauritania CN-EM
Flag of Mauritius.svg  Mauritius other
Flag of Mexico.svg  Mexico HC-AM
Flag of the Federated States of Micronesia.svg  Micronesia HC-AM
Flag of Moldova.svg  Moldova CC-EM
Flag of Monaco.svg  Monaco HC-EM
Flag of Mongolia.svg  Mongolia CC-EM
Flag of Montenegro.svg  Montenegro CC-EM
Flag of Morocco.svg  Morocco CN-FM
Flag of Mozambique.svg  Mozambique CN-FM
Flag of Myanmar.svg  Myanmar other
Flag of Namibia.svg  Namibia HC-AM
Flag of Nepal.svg    Nepal HC-AM
Flag of the Netherlands.svg  Netherlands none
Flag of New Zealand.svg  New Zealand HC-AM
[ dubious ]
Flag of Nicaragua.svg  Nicaragua HC-EM
Flag of Niger.svg  Niger HC-EM
Flag of Nigeria.svg  Nigeria HC-AM
Flag of North Korea.svg  North Korea (DPRK)none
Flag of Norway.svg  Norway HC-AM
Flag of Oman.svg  Oman none
Flag of Pakistan.svg  Pakistan other
Flag of Palau.svg  Palau HC-AM
Flag of Panama.svg  Panama HC-EM
Flag of Papua New Guinea.svg  Papua New Guinea HC-AM
Flag of Paraguay.svg  Paraguay HC-EM
Flag of Peru.svg  Peru CC-MX
Flag of the Philippines.svg  Philippines HC-EM
Flag of Poland.svg  Poland CC-EM
Flag of Portugal.svg  Portugal CC-MX
Flag of Qatar.svg  Qatar none
Flag of Romania.svg  Romania CC-EM
Flag of Russia.svg  Russia CC-EM
Flag of Rwanda.svg  Rwanda CC-EM
Flag of Saint Kitts and Nevis.svg  Saint Kitts and Nevis HC-AM
Flag of Saint Lucia.svg  Saint Lucia HC-AM
Flag of Saint Vincent and the Grenadines.svg  Saint Vincent and the Grenadines HC-AM
Flag of Samoa.svg  Samoa HC-AM
Flag of San Marino.svg  San Marino CC-EM
Flag of Sao Tome and Principe.svg  São Tomé and Príncipe other
Flag of Saudi Arabia.svg  Saudi Arabia none
Flag of Senegal.svg  Senegal CN-EM
Flag of Serbia.svg  Serbia CC-EM
Flag of Seychelles.svg  Seychelles HC-AM
Flag of Sierra Leone.svg  Sierra Leone HC-AM
Flag of Singapore.svg  Singapore HC-AM
Flag of Slovakia.svg  Slovakia CC-EM
Flag of Slovenia.svg  Slovenia CC-EM
Flag of the Solomon Islands.svg  Solomon Islands HC-AM
Flag of Somalia.svg  Somalia
Flag of South Africa.svg  South Africa CC-EM
Flag of South Korea.svg  South Korea CC-EM
Flag of South Sudan.svg  South Sudan
Flag of Spain.svg  Spain CC-EM
Flag of Sri Lanka.svg  Sri Lanka CC-EM
Flag of Sudan.svg  Sudan HC-EM
Flag of Suriname.svg  Suriname CC-EM
Flag of Eswatini.svg  Swaziland HC-AM
Flag of Sweden.svg  Sweden HC-AM
Flag of Switzerland (Pantone).svg   Switzerland HC-MX
Flag of Syria.svg  Syria CC-EM
Flag of the Republic of China.svg  Taiwan (Republic of China, ROC)HC-MX
Flag of Tajikistan.svg  Tajikistan CC-EM
Flag of Tanzania.svg  Tanzania HC-AM
Flag of Thailand.svg  Thailand CC-EM
Flag of Togo.svg  Togo CC-EM
Flag of Tonga.svg  Tonga HC-AM
Flag of Trinidad and Tobago.svg  Trinidad and Tobago HC-AM
Flag of Tunisia.svg  Tunisia none
Flag of Turkey.svg  Turkey CC-EM
Flag of Turkmenistan.svg  Turkmenistan none
Flag of Tuvalu.svg  Tuvalu HC-AM
Flag of Uganda.svg  Uganda HC-EM
Flag of Ukraine.svg  Ukraine CC-EM
Flag of the United Arab Emirates.svg  United Arab Emirates other
Flag of the United Kingdom.svg  United Kingdom other
Flag of the United States.svg  United States HC-AM
Flag of Uruguay.svg  Uruguay HC-EM
Flag of Uzbekistan.svg  Uzbekistan CC-EM
Flag of Vanuatu.svg  Vanuatu HC-AM
Flag of Vatican City State - 2023 version.svg   Vatican City none
Flag of Venezuela.svg  Venezuela HC-MX
Flag of Vietnam.svg  Vietnam none
Flag of Yemen.svg  Yemen HC-EM
Flag of Zambia.svg  Zambia HC-EM
Flag of Zimbabwe.svg  Zimbabwe other

In specific jurisdictions

See also

Related Research Articles

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  1. 1 2 3 Elliott, Mark (2001). The constitutional foundations of judicial review. Oxford [England]: Hart Pub. ISBN   978-1-84731-051-4. OCLC   191746889.
  2. Montesquieu, Baron Charles de, The Spirit of the Laws
  3. Article 120 of the Netherlands Constitution
  4. ESKRIDGE ET AL., supra note 532, at 1207 ("Presumption in favor of judicial review."); id.("Rule against interpreting statutes to deny a right to jury trial."); id.("Super-strong rule against implied congressional abrogation or repeal of habeas corpus."); id. at 1208 ("Presumption against exhaustion of remedies requirement for lawsuit to enforce constitutional rights."); id.("Presumption that judgements will not be binding upon persons not party to adjudication."); id.("Presumption against foreclosure of private enforcement of important federal rights."). See, e.g., Demote v. Hyung Joon Kim, 538 U.S. 510, 517 (2003). But see SCALIA & GARNER, supra note 532, at 367 (describing as a "false notion" the idea "that a statute cannot oust courts of jurisdiction unless it does so expressly").
  5. Australian Communist Party v Commonwealth (1951) 83 CLR 1 AustLII
  6. Parliamentary Education Office. "What is judicial review?". Parliamentary Education Office. Retrieved 9 March 2023.
  7. Keyzer, Patrick; Goff, Christopher; Fisher, Asaf (23 December 2016). Principles of Australian Constitutional Law (5th ed.). Australia: LexisNexis Butterworths. p. 36. ISBN   9780409341959.
  8. The strength of the combination Government - Parliament ... far from outperform the reasons of the Constitutional scrutiny, makes the judicial review more necessary than ever: Buonomo, Giampiero (2006). "Peculato d'uso: perché il condannato non può fare il Sindaco. Dalla Consulta "no" ai Dl senza necessità e urgenza". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-04-09.
  9. "Dr. Arne Mavčič. (2010). A Tabular Presentation of Constitutional/Judicial Review Around the World". concourts.net. Retrieved 2022-05-10.

Further reading