Judicial review

Australia has a unified system of state and federal courts, so state and federal constitutional issues can arise in state courts. A significant constitutional issue is almost always removed into the High Court of Australia for a final decision.

Merit

Legality

The States

Judicial review in Austria

• upon request by a qualified parliamentary minority of one third;
• upon request of another court;
• upon request by anyone who can show that he is individually affected by the statute;
• upon appeal against an administrative act where an individual charges that it is based on unconstitutional legislation.

Judicial review in Canada

It is important to note that the courts in each province, while provincial, are courts of plenary jurisdiction under the Canadian constitution and are held to have the traditional powers of judicial review such as in England and Wales. Regarding the review of administrative decisions by public officials the concepts of fundamental justice and overturning of patently unreasonable decisionmaking have developed along with the evolution of the royal writs as in the United Kingdom.

In 1982 when the patriated Canadian Constitution came into force the Canadian Charter of Rights and Freedoms created a clear written power of judicial review. In that document, the Supreme Court of Canada was granted the power of judicial review beyond the power that it had prior to that date. This power can be overridden by governments with respect to certain clauses of the Charter by invoking the notwithstanding clause in legislation. However, it is a mechanism which is often considered dangerous politically because of public respect for the Canadian Charter of Rights and Freedoms.

Judicial review in England and Wales

Standing

The test of sufficient interest, or locus standi, is fairly liberal, especially when compared to the 'victim' test adopted for claims under section 6 of the Human Rights Act 1998. Representative applications are allowed, and have been permitted from organisations such as Greenpeace and charities such as the World Development Movement.

In the case of R v Inland Revenue Commission, ex parte National Federation of Self-Employed, Fleet Street Newspapers had been avoiding taxes illegally. The IRC subsequently discovered this and struck a retributive deal with the newspaper which was considered unfair by the National Federation of Self-Employed, as the latter had never been treated so favourably by the IRC. The NFSE sought to bring a claim for judicial review against the IRC, citing extraneous, irrelevant considerations (the IRC was anxious to avoid the newspaper striking). It was held that the NFSE had insufficient interest to bring a claim for judicial review.

In this landmark case, Lord Wilberforce set out 3 criteria for consideration in establishing sufficient interest: 1. Powers/duties in law of those against whom relief is being sought. 2. Position of the applicant in relation to those powers/duties 3. The breach said to have been committed

In short, the court will consider the relative positions of the defendant and plaintiff and the extent of the alleged breach in determining a sufficient interest.

Once leave has been granted the applicant must establish grounds for review. The main grounds for review are: illegality, irrationality, procedural impropriety, Human Rights Act section 6, and breach of EC law.

Amenability

Illegality

• a public body does something for which it has no positive legal authority
• a statute places a duty on a public authority and that duty has not been carried out
• a statute confers a power on an authority and that power is used for a purpose other than that intended by the statute
• in exercising a public power an authority takes into account an irrelevant consideration or fails to take into account a relevant consideration
• a statute confers a power on public body 'X' but it was taken by public body 'Y' ("unlawful delegation")
• a statute confers discretion on a public authority and that authority adopts an overly rigid policy as to how that discretion will be exercised ("fettering discretion")
• a public authority makes a factual error in arriving at its decision.

Irrationality

• the decision is obviously perverse or absurd
• the decision is illogical
• the decision is disproportionate

Non-justiciable --> Ordinary Wednesbury --> Super Wednesbury --> Anxious Scrutiny

Non-justiciable cases are those which involve matters best left to the executive (such as national security), and courts will refuse to review such cases on the basis of irrationality. Anxious scrutiny applies to cases involving human rights. As a general rule, the further to the right of the scale the case falls, the more likely the courts are to find that a decision was unreasonable.

Procedural impropriety

• the decision-maker was biased
• the decision-maker failed to provide a fair hearing
• the decision-maker failed to provide reasons for the decision after it was taken

Human Rights Act 1998 s.6

Breach of EU law

Judicial review in Germany

1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;

2. in the event of disagreements or doubts respecting the formal or substantive compatibility of federal law or state law with this Basic Law, or the compatibility of state law with other federal law, on application of the Federal Government, of a state government, or of one third of the Members of the Bundesrat;

2a. in the event of disagreements whether a law meets the requirements of paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a state;

3. in the event of disagreements respecting the rights and duties of the Federation and the states, especially in the execution of federal law by the states and in the exercise of federal oversight;

4. on other disputes involving public law between the Federation and the states, between different states, or within a state, unless there is recourse to another court;

4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been infringed by public authority;

4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 has been infringed by a law; in the case of infringement by a state law, however, only if the law cannot be challenged in the constitutional court of the state;

5. in the other instances provided for in this Basic Law.

Similar judicial reviews

Judicial review in France

The problem with this mechanism is that in France, the Constitutional Council is the only judicial body having authority for judicial review. It cannot be seized by ordinary citizens, who also cannot invoke unconstitutionality of a law as a defense. This means that unconstitutional laws cannot be fought anymore if they somehow evade the Constitutional Council (for instance, if it is not seized by the Parliament during the one-month delay allowed by the Constitution).

In practice, the French supreme courts who deal with individuals (Conseil d'état and Cour de Cassation) do their best to interpret the law in a manner consistent with the Constitution. In particular, French administrative law defines a category of case law known as principles of constitutional value (principes à valeur constitutionnelle), such as human dignity and continuity of the state, that rule over the executive branch of the government even if the legislator omits to say so in statute law.

Judicial review in the Republic of Ireland

Judicial review in Malaysia

Judicial review in Scotland

Judicial review in Switzerland

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 judicial 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.).

Judicial review in the United States

The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, which states:

''"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 ultimate court for deciding the constitutionality of state law under state constitutions is the highest appellate court in each state — usually called a Supreme Court, but also sometimes known as the Court of Appeals. Even before Marbury, the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes.

In the Federal system, courts may only decide actual controversies; it is not possible to request the Federal courts to review a law without at least one party with legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

Self-imposed restrictions

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

(1) The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

(2) The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

(3)The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'

(4)The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of . . . [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.

(5) The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

(6) The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

(7) When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Pros and cons

The Virginia Constitution of 1776 states, "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

In a letter to William C. Jarvis in 1820, Thomas Jefferson wrote:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.

he [Madison, for he always referred to himself in the third person] doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a [j]udiciary [n]ature. The right of expounding the Constitution in cases not of this nature ought not to be given to that [d]epartment.

[I]n their decisions they will not confine themselves to any fixed established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors or control their adjudications. From this court there is no appeal… They will be able to extend the limits of the general government gradually, and by insensible degrees… one adjudication will form a precedent to the next, and this to a following one.

Proponents of judicial review note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. This concept was laid out by Alexander Hamilton in Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

See also

• Judicial interpretation
• Marbury v. Madison

Notes and references