Judicial review

Types

Review of administrative acts and secondary legislation

Most modern legal systems allow the courts to review administrative actions (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, whether these courts are part of the 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 action 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.

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. 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 India which also inherited the English common law tradition, the power of judicial review is exercised primarily by the Supreme Court of India and various state High Courts. The constitution of India explicitly grants powers to the Supreme court and State High Courts via articles 13, 32, 226 to examine and invalidate legislation in contravention of constitutional provisions and particularly those which infringe upon the Fundamental Rights. In landmark Supreme Court decision in Kesavananda Bharati v. State of Kerala decided in 1973, The concept of basic structure doctrine was established allowing Supreme Court and High courts to review constitutional amendments and strike them down if found in contravention of basic structure of constitution.

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.

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.

History

Judicial review as a contribution to political theory is sometimes said to be a "distinctively American contribution", argued to have been established in the US Supreme Court's decision in Marbury v. Madison (1803). However, "the American version of judicial review was the logical result of centuries of European thought and colonial experience which had made Western [societies] generally willing to admit the theoretical primacy of certain kinds of law and had made Americans in particular ready to provide a judicial means of enforcing that primacy." That is, the "belief in the need to subordinate certain acts of the law-making power to higher, more permanent principles" can be seen, for example, in medieval European scholastics, courts of equity in England, Parlements in France, and Enlightenment philosophers. Moreover, writing in 2005, Treanor argued that "judicial review was much better established in the years immediately after the adoption of the [United States] constitution than has previously been recognized, and it was far from rare ... [and] judicial invalidation of statutes fell into certain patterns." US Chief Justice John Marshall, the author of Marbury v. Madison, "came from Virginia, the state in which [judicial review] was particularly well established by the case law and in which it was repeatedly endorsed during the debate over the Constitution", and thus, on a personal level, Marshall "must have experienced judicial review as long-established". Moreover, "The fact that judicial review was exercised much more frequently than previously recognized in the years before Marbury helps explain why Marshall's assertion of the power to exercise judicial review in the case elicited so little comment."

In specific jurisdictions

The grounds, scope and consequences of judicial review depend on the jurisdiction in which it occurs. The below links examine in detail judicial review across a variety of legal systems, including civil and common law jurisdictions.

• Australian administrative law § Judicial review
• Judicial review in Austria
• Judicial review in Bangladesh
• Judicial review in Canada
• Constitutional Court of the Czech Republic
• Judicial review in Denmark
• Judicial review in English law
• Judicial review in Germany
• Judicial review in Hong Kong
• Judicial review in India
• Judicial review in Ireland
• Judicial review in Japan
• Judicial review in Malaysia
• Judicial review in New Zealand
• Judicial review in Norway
• Judicial review in the Philippines
• Judicial review in Scotland
• Judicial review in South Africa
• Judicial review in South Korea
• Judicial review in Sweden
• Judicial review in Switzerland
• Judicial Yuan (Taiwan / Republic of China)
• Judicial review in the United States
• Judicial supervision (Soviet Union)