JUDICIAL REVIEW

'Judicial review' is the power of a court to review the actions of public sector bodies in terms of their constitutionality. In some jurisdictions it is also possible to review the constitutionality of the law itself.

Contents

Specific jurisdictions

England and Wales

Scotland

Republic of Ireland

Malaysia

Switzerland

United States

Philippines

See also

Notes and references

Specific jurisdictions

England and Wales

Main articles: Judicial review in English Law

Judicial review is a procedure in English Administrative Law by which English courts supervise public authorities in the exercise of their powers. A person who feels that a decision of a public authority, such as a government minister, the local council or a statutory tribunal has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision. If the application for judicial review is successful, the Court may set aside (quash) the unlawful act. In certain limited circumstances, the Claimant may be able to obtain damages. A court may also make a mandatory or prohibitory order or an injunctions to compel the authority to do its duty or to stop it from acting unlawfully.
Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to EU law (see Factortame). Although the Courts can review primary legislation to determine its compatibility with the Human Rights Act 1998, they have no power to quash or suspend the operation of an enactment which is found to be incompatible with the European Convention of Human Rights - they can merely declare that they have found the enactment to be incompatible.

Scotland

The power of judicial review of all actions of administrative bodies in Scotland (including the Scottish Parliament) is held by the Court of Session. The procedure is governed by Chapter 58 of the Rules of Court. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay on the part of the pursuer the court may exercise its discretion and refuse to grant review. Despite the procedural differences the substantive law regarding the grounds of judicial review in Scotland is the same as that in England and Wales with decisions in one jurisdiction regarded as highly persuasive in the other. Readers are referred to Judicial review in English Law for further detail on the grounds of review. Generally, it is confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision maker could have reached it (so-called Wednesbury unreasonableness). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the Human Rights Act 1998. About six hundred judicial review cases are raised every year; most are settled by agreement with only a small minority having to be decided by the court.

Republic of Ireland

Judicial review in Ireland is way for the High Court to supervise the Oireachtas to make sure that legislation does not conflict with the Constitution.

Malaysia

Although Malaysia inherited the political system of British India based on the Westminster system which made no provision for judicial review, the Federal Constitution of Malaysia instituted a system based on that of the India which was in turn influenced by other constitutions including that of the United States. Judges are empowered to declare laws or executive actions ''ultra vires'' if they clashed with the Constitution and/or the parent legislation. However, this power was curbed after the 1988 Malaysian constitutional crisis by then Prime Minister Mahathir bin Mohamad through amendments to the Federal Constitution.^[1] A particularly significant amendment was the removal of the judicial power and subjecting the judiciary to such jurisdiction and powers as may be conferred by or under federal law.^[2] The merits of detentions made under the Internal Security Act are also not subject to judicial review, but the procedures are.^[3]

Switzerland

Article 190 of the Swiss Federal Constitution states that federal statutes and international law are binding on the Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but will, where possible, construe statutes so as not to create a conflict with the Constitution. The courts can suspend the application of federal statutes that conflict with international law, but tend to exercise this power cautiously and deferentially: In ''Schubert'' (BGE 99 Ib 39), the Federal Supreme Court refused to do so because Parliament had consciously violated international law in drafting the statute at issue.
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.).

United States

Main articles: Judicial review in the United States

The Constitution states in Article III that:
Congress can change the number of justices, their responsibilities, and the rules whereby cases come into the jurisdiction of the various courts.

Philippines

As early as 1936, the Philippine Supreme Court had unequivocally asserted its constitutional authority to engage in judicial review. This power was affirmed in the Supreme Court decision in ''Angara v. Electoral Commission'', 63 Phil. 139 (1936). Nonetheless, the Supreme Court would, in the next several decades, often decline to exercise judicial review by invoking the political question doctrine. In 1987, the constitutional convention tasked to draft a new charter decided to provide for a definition of “judicial power” as a means of inhibiting the Court from frequent resort to the political question doctrine. Hence, Section 1, Article VIII of the 1987 Constitution states in part that:''Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.''
See also:^[4]

See also

★ Judicial interpretation

Notes and references

1. "Country Briefing: Malaysia". (Oct. 13, 2005). ''The Economist''.
2.
3. "Malaysia: ISA Detainees Beaten and Humiliated". (Sept. 27, 2005). ''Human Rights Watch''.
4. The Origins of Philippine Judicial Review, 1900-1935, Anna Leah Fidelis T. Castañeda, , , Ateneo Law Journal (republished online by Harvard law School), 2001