THE CONCEPT OF JUDICIAL REVIEW: A COMPARATIVE STUDY AMONG USA, UK, CANADA, AUSTRALIA, FRANCE AND SWITZERLAND

 Judicial review is a process under
which executive or legislative actions are
subject to review by the judiciary
 A court with authority for judicial review
may invalidate laws and governmental
actions that are incompatible with a higher
authority
 Judicial review is one of the checks and
balances in the separation of powers
 The doctrine varies between jurisdictions,
so the procedure and scope of judicial review
may differ between and within countries.

Judicial Review as formulated by Chief
Justice Marshall of the American Supreme
Court had a number of objectives:
1. To uphold the principle of the supremacy
of the Constitution.
2. To maintain federal equilibrium i.e.
balance between the centre and the states.
3. To protect the fundamental rights of the
citizens.

Judicial review should be understood in the
context of two distinct Legal Systems:
1. civil law and
2. common law;
and also by two distinct Theories of
Democracy:
1. doctrines of legislative supremacy and
2. the separation of powers
for a much better study ad analysis for the
reasons which follows.

According to Alexander Hamilton,
“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 and meaning of an act
passed by the legislature.”

 The concept of judicial review was developed by
Chief Justice Marshall of the American Supreme
Court in the famous Marbury v. Madison case of
1803.
 It was laid down that “the judiciary has the
power to examine the laws made by the
legislature.”
 It was also declared that if any such law is found
to be in violation of the constitution, then such a
law would be declared by the court as ultra-virus
of the constitution.
 While doing so the Supreme Court referred to
Article VI, Section 2 of the Constitution.

“This Constitution and the laws of the
United States which shall be made in
pursuance thereof; and all treaties made or
which shall be made under the authority of
the United States, shall be the supreme law
of the land, and the judges in every state
shall be bound thereby, anything in the
constitution or laws of any state to the
contrary notwithstanding”

 The U.S. Constitution does not mention
judicial review.
 In 1789 the Congress of the United States
passed the Judiciary Act, which gave federal
courts the power of judicial review over acts
of state government.
 This power was used for the first time by the
U.S. Supreme Court in Hilton v. Virginia.
 Till today nearly 100 Congressional statutes
have been declared unconstitutional by the
Supreme Court.

 After the judicial review is conducted the
Supreme Court can give 3 types of decisions.
These are as follows:
1. That the law is unconstitutional
2. That the law is constitutional and fair
3. That any part or some parts of the law are
unconstitutional
 On the basis of the Fifth Amendment of
the Constitution, the scope of judicial
review has become very vast.
 It lays down that “the Government cannot
deprive anyone of life, liberty or property
without due process of law.”
(fair trial for meeting ends of justice)

 The Court does not conduct judicial review
over political issues.
 Court has to assign reasons for declaring a
law unconstitutional.
 It cannot initiate the process of its own.
 The law declared invalid ceases to operate
for the future. The work already done on its
basis continues to be valid.
 The Court has to demonstrate clearly the
unconstitutionality of the law.

 When one talks of Judicial Review in the
context of Constitutional Law, one would
think that a necessary ingredient is a Written
Constitution.
 However, this does not mean to say that the
concept is not prevalent in countries having
an unwritten constitution
 In United Kingdom, judicial review deals with
public law wherein a judge reviews the
decision or an action of a public body and its
lawfulness

 Till recently, the Courts were meant to
enforce the will of the Parliament.
 Thus they were not allowed to review the
Acts of Parliament itself
 Therefore judicial review was not present in
respect of primary legislations but only for
subordinate or delegated legislations.
 However this position has been changing with
time, not just due to the Acts of Parliament
itself but also because of the active role that
the judiciary has started taking in this
respect

 Enactment of Human Rights Act, 1998
which was passed on the basis of The
European Convention for the Protection of
Human Rights and Fundamental Freedom,
1953 heralded in the new era for Judicial
Review.
 Section 7 of the Act gives a person the right
to approach a court to get a declaration of
incompatibility or any other order as is
deemed appropriate

 The Administrative Reforms of the 1970’s
provided the most important influence on
judicial review in recent times
 These included the establishment of the Federal
Court of Australia, the Administrative Appeals
Tribunal and the office of Ombudsman.
 Most significantly, they involved the enactment
of the Administrative Decisions (Judicial
Review) Act 1977.
 Section 75(v) of the Commonwealth
Constitution confers jurisdiction on the High
Court of Australia where “a writ of mandamus or
prohibition or an injunction is sought against an
officer of the Commonwealth”

 Section 33 of the Judiciary Act 1901
further extends the jurisdiction of the High
Court to issue public law remedies.
 the Federal Court also has statutory
jurisdiction to undertake judicial review
pursuant to the AD (JR) Act.
 Section 39B (1) of the Judiciary Act re-
enacts s 75(v) of the Constitution for the
Federal Court. Section 39B (1A) also confers
jurisdiction on the Federal Court “in any
matter... arising under any laws made by the
Parliament...”.

 In Canada, judicial review is the process that
allows courts to supervise administrative
tribunal’s exercise of their statutory
powers.
 Judicial review of administrative action is
only available for decisions made by a
governmental or quasi-governmental
authority
 Judicial review is meant to be a last resort
for those seeking to redress a decision of an
administrative decision maker.

 Judicial review in Canada has its roots in
the English common law system
 Judicial review of statutes passed in the
colonies was carried out by the Judicial
Committee of the Privy Council through the
Privy Council Acts of 1833 and 1844.
 Subsequently, the Constitution Act of
1867 was drafted with a provision allowing
for the courts to enforce limitations of
legislative powers through judicial review.

 The grounds for judicial review are broad,
but not without limits.
 The court must be satisfied that there has
been a jurisdictional error, an error of
procedural fairness, or an error of fact.
 These grounds are laid out in s. 18.1(4) of
the Federal Courts Act.
 This section of the Act also transfers
authority over judicial review against any
federal body from the provincial superior
courts to the Federal Court

 There is only a very limited form of judicial
review in France: the ‘Conseil Constitutionnel’
 It can review legislation on constitutional
grounds, but only in the period between
passage of a bill and “promulgation” and only
on a referral by the president, the prime
minister, the president of the Senate, the
president of the National Assembly, or sixty
senators or sixty deputies.
 Once promulgated, a law cannot be challenged
on constitutional grounds, only rescinded by
legislative action.

 The Conseil Constitutionnel has 9 members,
just like the U. S. Supreme Court.
 They do not serve for life, however, but only for
nine-year, non-renewable terms; three are
replaced every three years, with nominations
of new members by the President of the Republic
and the presidents of the Senate and National
Assembly.
 The structure and powers of the Conseil are as
they are because de Gaulle explicitly rejected
the American idea of a Supreme Court, which he
regarded as a form of government by judges.
 In a democracy, he reportedly said, “the only
supreme court is the people”

 An exception to the rule by which a
constitutional court or a supreme court
decides on the constitutionality of state
constitutions would be Switzerland, where
cantonal constitutions are not subjected to
judicial review.
 However, it is far from the fact that cantonal
constitutions are excluded from any review,
as cantons submit their constitutions to the
federal parliament for ratification, and the
constitutions are therefore treated as federal
regulations and are integrated into the
federal law.

 Switzerland has exempted specific legislative
acts from the judicial review through the federal
constitution or judicial practice, by the court's
narrow interpretations of the constitution.
 Such provisions were present in the Constitution
of 1874, and they were reiterated at the 1939
referendum, when a proposed amendment was
repealed that would have otherwise allowed the
judicial review of federal laws by the Federal
Court.
 The provisions banning the Supreme Federal
Court from reviewing the constitutionality of
federal laws were included in the new
constitution of the Swiss Confederation of
1999.

THE CONCEPT OF JUDICIAL REVIEW: A COMPARATIVE STUDY AMONG USA, UK, CANADA, AUSTRALIA, FRANCE AND SWITZERLAND

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THE CONCEPT OF JUDICIAL REVIEW: A COMPARATIVE STUDY AMONG USA, UK, CANADA, AUSTRALIA, FRANCE AND SWITZERLAND