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, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil law and common law, and also by two distinct theories of democracy regarding the manner in which government should be organized with respect to the principles and doctrines of legislative supremacy and the separation of powers.
First, two distinct legal systems, civil law and common law, have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition, judges are seen as those who apply the law, with no power to create (or destroy) legal principles.
Secondly, the idea of separation of powers is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by Montesquieu; it was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison under the court of John Marshall. Separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without due process of law; each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. The key to this idea is checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary.
Differences in organizing "democratic" societies led to different views regarding judicial review, with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have learned the possible dangers and limitations of entrusting power exclusively to the legislative branch of government. Many countries with civil-law systems have adopted a form of judicial review to stem the tyranny of the majority.
Another reason why judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy (legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation. Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, judges in the United Kingdom do not have the power to strike down primary legislation. However, since the United Kingdom became a member of the European Union there has been tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the Court of Justice of the European Union the power of judicial review.
Most modern legal systems allow the courts to review administrative acts (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration. In other countries (including the United States and United Kingdom), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as the Administrative Court within the High Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases.
There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature.
Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.
In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation by a process of judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803. A similar system was also adopted in Australia.
In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court as written by Hans Kelsen, a leading jurist of the time. This system was later adopted by Austria and became known as the Austrian System, also under the primary authorship of Hans Kelsen, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court.
Russia adopts a mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the law's adequacy to the Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be followed by judges and government officials at all levels.
|Country||Constitutional Court||High Court||Constitutional Council||Other form||No judicial review|
|Antigua and Barbuda||HC-AM|
|Bosnia and Herzegovina||CC-EM|
|Central African Republic||CC-EM|
|People's Republic of China (PRC)||W/O|
|Democratic Republic of the Congo||HC-EM|
|Republic of the Congo||ELSE|
|North Korea (DPRK)||W/O|
|Papua New Guinea||HC-AM|
|Saint Kitts and Nevis||HC-AM|
|Saint Vincent and the Grenadines||HC-AM|
|São Tomé and Príncipe||ELSE|
|Taiwan (Republic of China, ROC)||HC-MX|
|Trinidad and Tobago||HC-AM|
|United Arab Emirates||ELSE|
Certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency. The term comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review.
Certiorari was inherited as part of English common law by the countries in the Commonwealth of Nations and by the United States. It has subsequently evolved in the legal system of each nation, as court decisions and statutory amendments are made. In modern law, certiorari is recognized in many jurisdictions, including England and Wales (now called by a different name), Canada, India, Ireland, the Philippines and the United States. With the expansion of administrative law in the 19th and 20th centuries, the writ of certiorari has gained broader use in many countries, to review the decisions of administrative bodes as well as lower courts.Constitution of India
The Constitution of India (IAST: Bhāratīya Saṃvidhāna) is the supreme law of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth. B. R. Ambedkar, chairman of the drafting committee, is widely considered to be its chief architect.It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a constituent assembly rather than Parliament) and was adopted by its people with a declaration in its preamble. Parliament cannot override the constitution.
It was adopted by the Constituent Assembly of India on 26 November 1949 and became effective on 26 January 1950. The constitution replaced the Government of India Act, 1935 as the country's fundamental governing document, and the Dominion of India became the Republic of India. To ensure constitutional autochthony, its framers repealed prior acts of the British parliament in Article 395. India celebrates its constitution on 26 January as Republic Day.The constitution declares India a sovereign, socialist, secular, democratic republic, assuring its citizens justice, equality and liberty, and endeavours to promote fraternity. The original 1950 constitution is preserved in a helium-filled case at the Parliament House in New Delhi. The words "secular" and "socialist" were added to the preamble in 1976 during the emergency.Constitution of the United States
The Constitution of the United States is the supreme law of the United States of America. The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress (Article One); the executive, consisting of the President (Article Two); and the judicial, consisting of the Supreme Court and other federal courts (Article Three). Articles Four, Five and Six embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it. It is regarded as the oldest written and codified national constitution in force.Since the Constitution came into force in 1789, it has been amended 27 times, including an amendment to repeal a previous one, in order to meet the needs of a nation that has profoundly changed since the eighteenth century. In general, the first ten amendments, known collectively as the Bill of Rights, offer specific protections of individual liberty and justice and place restrictions on the powers of government. The majority of the seventeen later amendments expand individual civil rights protections. Others address issues related to federal authority or modify government processes and procedures. Amendments to the United States Constitution, unlike ones made to many constitutions worldwide, are appended to the document. All four pages of the original U.S. Constitution are written on parchment.According to the United States Senate: "The Constitution's first three words—We the People—affirm that the government of the United States exists to serve its citizens. For over two centuries the Constitution has remained in force because its framers wisely separated and balanced governmental powers to safeguard the interests of majority rule and minority rights, of liberty and equality, and of the federal and state governments."The first permanent constitution of its kind, adopted by the people's representatives for an expansive nation, it is interpreted, supplemented, and implemented by a large body of constitutional law, and has influenced the constitutions of other nations.Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or guidelines set forth in the applicable constitution. When one of these (laws, procedures, or acts) directly violates the constitution, it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise, typically by courts through judicial review.Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service  UKHL 9, or the GCHQ case, is a UK constitutional law and UK labour law case that held the Royal Prerogative was subject to judicial review.
In 1984, the government of Margaret Thatcher banned employees of the Government Communications Headquarters (GCHQ) from joining any trade union for "national security" reasons by an Order in Council using the Royal Prerogative. The Council of Civil Service Unions claimed in judicial review that defeated their legitimate expectations, to collectively bargain for fair wages. The High Court of Justice held the Order in Council was invalid. The Court of Appeal held national security concerns meant that judicial review was impossible. The House of Lords held that exercises of the Royal Prerogative were subject to judicial review, but there were exceptions, including for matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. The GCHQ case established that judicial review depends on the nature of the government's powers, not their source.Department for Transport
The Department for Transport (DfT) is the government department responsible for the English transport network and a limited number of transport matters in Scotland, Wales and Northern Ireland that have not been devolved. The department is run by the Secretary of State for Transport, currently (since 14 July 2016) Chris Grayling.Election Commission of Pakistan
The Election Commission of Pakistan (Urdu: الیکشن کمیشن پاکستان), is an independent, autonomous, permanent and constitutionally established federal body responsible for organizing and conducting of elections to state parliament, provincial legislatures, local governments, elections to the office of President of Pakistan, delimitation of constituencies and preparation of Electoral Rolls. As per the principles enlightened by the Constitution of Pakistan, the Commission makes such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against The Election Commission was formed on 23 March 1956 and has been restructured and reformed in various occasions of history of the country.Under the Article 213 & 216, the Chief Election Commissioner and four retired judges of the High Courts from respective four province of the country, who are appointed by the President in the manner provided in the clauses (2A) and (2B) of Article 213 of constitution. As of present, Justice (R) Sardar Muhammad Raza is the current Chief Election Commissioner.Election Commission of Pakistan has a 5-member panel, out of which 4 members are from each of the four provinces (Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa) headed by a Chief Election Commissioner. The Commission transacts its business by holding meetings. All members of the Election Commission have equal status and say in the decisions of the Commission. The newly passed Elections Act 2017 from National Assembly dated 2nd October, 2017 has now been enacted and General Elections 2018 was performed under this Act successfully.
ECPs bureaucracy is headed by Federal Secretary ECP (BS-22)officer who manages the ECP SecretariatExclusion of judicial review in Singapore law
Exclusion of judicial review has been attempted by the Parliament of Singapore to protect the exercise of executive power. Typically, this has been done though the insertion of finality or total ouster clauses into Acts of Parliament, or by wording powers conferred by Acts on decision-makers subjectively. Finality clauses are generally viewed restrictively by courts in the United Kingdom. The courts there have taken the view that such clauses are, subject to some exceptions, not effective in denying or restricting the extent to which the courts are able to exercise judicial review. In contrast, Singapore cases suggest that ouster clauses cannot prevent the High Court from exercising supervisory jurisdiction over the exercise of executive power where authorities have committed jurisdictional errors of law, but are effective against non-jurisdictional errors of law.
A partial ouster or time limit clause specifies a restricted period, after which no remedy will be available. Such clauses are generally effective, unless the public authority has acted in bad faith. Similarly, the existence of bad faith entitles applicants to challenge decisions of authorities despite the existence of statutory provisions declaring such decisions to be conclusive evidence of certain facts. In the absence of bad faith, the courts will enforce conclusive evidence clauses.
In general, subjectively worded powers are also viewed restrictively by the Singapore courts. In Chng Suan Tze v. Minister for Home Affairs (1988), the Court of Appeal took the view that an objective test applied to the exercise of discretion conferred by the Internal Security Act (Cap. 143, 1985 Rev. Ed.) ("ISA") on the President and the Minister for Home Affairs concerning the detention without trial of persons thought to be a risk to national security. Hence, the jurisdiction of the High Court was not completely ousted, and it could objectively examine whether the relevant decision-makers had exercised their powers properly. However, legislative amendments to the ISA in 1989 reversed the effect of Chng Suan Tze by mandating that the courts are to apply a subjective test to the exercise of the discretion, and by excluding judicial review except where there is doubt whether the procedures set out in the Act were adhered to. Nevertheless, the subjective test is only applicable in the context of the ISA, and the rule that an objective test applies to subjectively worded powers continues to apply where statutes other than the ISA are concerned.Jeremy Waldron
Jeremy Waldron (; born 13 October 1953) is a New Zealand professor of law and philosophy. He holds a University Professorship at the New York University School of Law and was formerly the Chichele Professor of Social and Political Theory at All Souls College, Oxford University. Waldron also holds an adjunct professorship at Victoria University of Wellington. Waldron is regarded as one of the world's leading legal and political philosophers.Judicial activism
Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.Judicial review in Bangladesh
The term judicial review is not expressly used in Bangladeshi law, but Article 102 of the Constitution of Bangladesh allows writ petitions to be filed at the High Court Division for reviewing the actions of public authorities, or suspending proceedings in lower courts. The article has caused significant judicial activism in Bangladesh. In the 1970s, Article 102 was employed by the courts to set a precedent for invalidating detentions under the Special Powers Act. The courts have struck down constitutional amendments and enforced democratic local government under Article 102. The scope of such judicial review has expanded greatly since Justice Mustafa Kamal formally accepted public interest litigation for the first time in 1996, allowing associations and NGOs espousing the public's cause to file for judicial review.Judicial review in English law
Judicial review in English law enables people to challenge the exercise of power, often by a public body. A person who feels that an exercise of power is unlawful may apply to the Administrative Court (a division of the High Court) for a court to decide whether a decision followed the law. If the court finds the decision unlawful it may have it set aside (quashed) and possibly award damages. A court may impose an injunction upon the public body.
When creating a public body, legislation will often define duties, limits of power, and prescribe the reasoning a body must use to make decisions. These provisions provide a means for a decision to be found unlawful. In addition, the Human Rights Act 1998 provides that law must be interpreted and public bodies must act in a manner compliant with the European Convention on Human Rights. There are also common law constraints on the decision-making process of a body. Unlike the United States and some other jurisdictions, English law does not permit judicial review of primary legislation (laws passed by Parliament), except in a few cases where primary legislation is contrary to EU law or the European Convention on Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case, but may still argue that a body did not follow the Act.Judicial review in Sweden
Judicial review in Sweden (Swedish: lagprövningsrätt) is a constitutional provision, by which any Swedish court or administrative authority can declare an Act of the Parliament of Sweden to be in violation of the Constitution or a Government Ordinance to be in violation of laws passed by the Riksdag and thus inapplicable in the concrete case. Since 1994, the Constitution has stipulated that no law or other regulation may violate the European Convention (Ch. 2, art. 19 of the Instrument of Government). Traditionally, a more important check on the ability of the Riksdag to pass laws in violation of the rights provided by the Constitution has been the judicial preview exercised by the Council on Legislation.. The preview may or may not be respected by the legislator.Judicial review in the United States
In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States: In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.
As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.Marbury v. Madison
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.
The case originated from the political and ideological rivalry between outgoing U.S. President John Adams, who espoused the pro-business and pro-national-government ideals of Alexander Hamilton and the Federalist Party, and incoming President Thomas Jefferson, who led the Democratic-Republican Party and favored agriculture and decentralization. Adams had lost the U.S. presidential election of 1800 to Jefferson, and in March 1801, just two days before his term as president ended, Adams appointed several dozen Federalist Party supporters to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters in the Democratic-Republican Party. The U.S. Senate quickly confirmed Adams's appointments, but upon Jefferson's inauguration two days later, a few of the new judges' commissions still had not been delivered. Jefferson believed the commissions were void because they had not been delivered in time, and instructed his new Secretary of State, James Madison, not to deliver them. One of the men whose commissions had not been delivered in time was William Marbury, a Maryland businessman who had been a strong supporter of Adams and the Federalists. In late 1801, after Madison had repeatedly refused to deliver his commission, Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.In an opinion written by Chief Justice John Marshall, the Court held firstly that Madison's refusal to deliver Marbury's commission was illegal, and secondly that it was normally proper for a court in such situations to order the government official in question to deliver the commission. However, in Marbury's case, the Court did not order Madison to comply. Examining the law Congress had passed that gave the Supreme Court jurisdiction over types of cases like Marbury's, Marshall found that it had expanded the definition of the Supreme Court's jurisdiction beyond what was originally set down in the U.S. Constitution. Marshall then struck down the law, announcing that American courts have the power to invalidate laws that they find to violate the Constitution. Because this meant the Court had no jurisdiction over the case, it could not issue the writ that Marbury had requested.Standard of review
In law, the standard of review is the amount of deference given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute or precedent (stare decisis). In the United States, "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to Congress when ruling on the constitutionality of legislation.Supreme Court of Ireland
The Supreme Court of Ireland (Irish: Cúirt Uachtarach na hÉireann) is the highest judicial authority in Ireland. It is a court of final appeal and exercises, in conjunction with the Court of Appeal and the High Court, judicial review over Acts of the Oireachtas (Irish parliament). The Supreme Court also has jurisdiction to ensure compliance with the Constitution of Ireland by governmental bodies and private citizens. It sits in the Four Courts in Dublin.Supreme Court of Japan
The Supreme Court of Japan (最高裁判所, Saikō-Saibansho, called 最高裁 Saikō-Sai for short), located in Hayabusachō, Chiyoda, Tokyo, is the highest court in Japan. It has ultimate judicial authority to interpret the Japanese constitution and decide questions of national law (including local bylaws). It has the power of judicial review; that is, it can declare Acts of the National Diet, local assemblies, and administrative actions, to be unconstitutional.United Kingdom administrative law
United Kingdom administrative law is a branch of UK public law concerned with the composition, procedures, powers, duties, rights and liabilities of public bodies that administer public policies. The general principle is that a public official, or an "administrator must act fairly, reasonably and according to the law. That is the essence and the rest is mainly machinery."