Judicial review

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Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality 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.

1 Judicial review in the Republic of Ireland
2 Judicial review in Malaysia
3 Judicial review in the Philippines
4 Judicial review in Scotland
5 Judicial review in Switzerland
6 Judicial review in the United States
7 See also
8 Notes and references

[edit] Judicial review in the Republic of Ireland

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

[edit] Judicial review in Malaysia

Although Malaysia inherited the political system of British India based on the Westminster system which made no provision for judicial review, the Constitution of Malaysia instituted a system based on that of the United States. Judges were allowed to declare laws or executive actions ultra vires if they clashed with the Constitution. However, this power was curbed after the 1988 Malaysian constitutional crisis by then Prime Minister Mahathir bin Mohamad. ^[1] The merits of detentions made under the Internal Security Act are also not subject to judicial review, but the procedures are ^[2]

[edit] Judicial review in the 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), where the Court clarified that "[w]hen the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them."

Nonetheless, the Supreme Court would, in the next several decades, often decline to exercise judicial review by invoking the political question doctrine. This avoidance became controversial during the martial law rule of President Ferdinand Marcos, where a Supreme Court dominated by his appointees would refuse to nullify illiberal or controversial decrees by simply referring to the political question doctrine.^[3] After the 1986 ouster of Marcos and the abrogation of his constitution, 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.

Since 1987, the Supreme Court has cited this provision to counter arguments raised by party-litigants that the Court should refrain from exercising judicial review.

[edit] Judicial review in Scotland

The power of judicial review of all actings of administrative bodies or courts in Scotland (and even in theory of the Scottish Parliament) is held by the Court of Session. The procedure is governed by Chapter 58 of the Rules of Court, although there are special rules for some categories of cases such as statutory review of the Asylum and Immigration Tribunal. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay the court may in its discretion refuse to grant it. In general, judicial review is available for any error of law by an administrative body, but it is sometimes possible to seek judicial review simply on the basis that the decision was entirely unreasonable, ignored known facts, or took irrelevant material into account. About six hundred judicial review cases are brought every year; most of these are settled by agreement and only a small minority have to be decided by the court. There is a full discussion on this site.

[edit] Judicial review in Switzerland

Article 191 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.).

[edit] Judicial review in the United States

Courts in the United States have the power of judicial review. This power is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. ^[4] The Constitution states in Article III that:

"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…"

[edit] Administrative Review

The procedure for judicial review of federal administrative regulation in the United States

[edit] Constitutional Review

The power to strike down laws is not specifically listed, but is an implied power derived from Article III just quoted, and from Article VI which declares that the Constitution is the supreme law of the land binding upon judges by oath. No state or federal law is allowed to violate the U.S. Constitution. The ultimate court for deciding the constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The doctrine of judicial review was first announced as part of federal law in 1803, by the Supreme Court decision Marbury v. Madison.

The ultimate court for deciding the constitutionality of state law under state constitutions is always the highest state appellate court, whose judgments are final in the absence of a federal question. This court is usually called a supreme court, but sometimes known as a 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 cases or controversies; it is not possible to request the federal courts to review a law without at least one party having 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).

The Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds. Justice Brandeis framed it thus:

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.

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-9 (1936) (Brandeis, concurring) (citing cases) (internal quotation marks omitted).

[edit] Pros and cons

Although judicial review has become an established part of constitutional law in the United States, some people disagree with the doctrine, or believe that it is unconstitutional since it is not specifically spelled out in the Constitution.

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.

The origins of judicial review in the United States can be traced back to the Constitutional Convention and the Virginia Plan's "council of revision", which included the Supreme Court, that would examine proposed new laws and could accept or reject them. However, under this system, the legislature could pass a bill over the council's veto. By August 27, 1787 this plan had been dropped. James Madison, the author of the Virginia plan, stated in his notes on the convention that:

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.

Robert Yates, a delegate to the Constitutional Convention from New York, predicted what would happen:

[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.

Therefore, the Constitutional Convention, believing that the Supreme Court would abuse their power, changed the "council of revision" into the Presidential veto.

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.

[edit] Standard of review

In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in Satterlee v. Matthewson, 27 U.S. 380 (1829):

We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it be so, this Court has no authority, under the 25th section of the judiciary act, to re-examine and to reverse the judgment of the supreme court of Pennsylvania in the present case.

If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as a violation of the Supremacy Clause. But a federal court may not strike down a statute absent a violation of Federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Antifederalists agreed that courts would be unable to strike down federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution." ^[5]

These principles --- that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear --- were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutonal convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." ^[6]

Until the twentieth century, judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction. However, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court’s famous footnote four. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.