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

Shivani Sharma
Shivani Sharma
Shivani SharmaAssistant Professor at Sardar Patel Subharti Institute of Law, Meerut

THE SLIDES SHOW THE THE CONCEPT OF JUDICIAL REVIEW AMONG COUNTRIES LIKE USA, UK, CANADA, AUSTRALIA, FRANCE AND SWITZERLAND

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

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

  • 2.  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.
  • 3. 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.
  • 4. 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.
  • 6. 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.”
  • 7.  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.
  • 8. “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”
  • 9.  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.
  • 10.  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)
  • 11.  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.
  • 13.  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
  • 14.  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
  • 15.  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
  • 17.  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”
  • 18.  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...”.
  • 20.  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.
  • 21.  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.
  • 22.  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
  • 24.  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.
  • 25.  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”
  • 27.  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.
  • 28.  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.