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Judicial review
Not to be confused with Law review.
This article is about court power over non-judicial branches. For court power over lower courts, see Appellate review.
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.
The High Court of Australia. Under the Constitution of Australia, the judiciary forms part of the separation of powers, with executive or legislative actions subject to review by the judiciary. Laws, acts and governmental actions that are incompatible with a higher authority (e.g. the Constitution) can be reviewed and overturned
General principles
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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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid.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;[1] 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.[citation needed] Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have gradually adopted or expanded the scope of judicial review, including countries from both the civil law and common law traditions.
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, when the United Kingdom became a member of the European Union there was 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.
Administrative acts
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.
Primary legislation
There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed dir,[clarification needed] another type of primary legislation not passed by Parliament, can[clarification needed] (see Council of Civil Service Unions v Minister for the Civil Service (1985) and Miller/Cherry (2019)). Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.[2]
Review by general courts
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. Courts in the United States may also invoke judicial review in order to ensure that a statute is not denying them of their constitutional rights.[3] 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.[4]
Review by a specialized court
Further information: Constitutional Court of the Czech Republic
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.[5]
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.
Judicial review by country
External image
Constitutional review models around the world (map)[6]
CountryConstitutional CourtHigh CourtConstitutional Council
Other form
[definition needed]
No judicial review
European
Model[definition needed]
Mixed
Model[definition needed]
European
Model[definition needed]
American
Model[definition needed]
Mixed
Model[definition needed]
French
Model[definition needed]
European
Model[definition needed]
 Afghanistan
HC-AM
 Albania
CC-EM
 Algeria
CN-FM
 Andorra
CC-EM
 Angola
CC-EM
 Antigua and Barbuda
HC-AM
 ArgentinaHC-AM
 ArmeniaCC-EM
 Australiaother
 Austria
CC-EM
 AzerbaijanCC-EM
 BahamasHC-AM
 Bahrainnone
 BangladeshHC-AM
 Barbados
HC-AM
 BelarusCC-EM
 Belgium
HC-EM
 BelizeHC-AM
 Benin
CC-EM
 Bhutan
 Bolivia
HC-AM
 Bosnia and HerzegovinaCC-EM
 Botswana
HC-AM
 Brazil
HC-MX
 Bruneinone
 BulgariaCC-EM
 Burkina Faso
HC-EM
 BurundiCC-EM
 Cambodia
CN-EM
 Cameroon
HC-EM
 CanadaHC-MX
 Cape VerdeHC-MX
 Central African Republic
CC-EM
 Chad
HC-EM
 Chile
CC-EM
 People's Republic of China (PRC)
none
 Colombia
CC-MX
 ComorosCN-FM
 Democratic Republic of the Congo
HC-EM
 Republic of the Congo
other
 Costa RicaHC-EM
 CroatiaCC-EM
 Cubanone
 Cyprus
HC-AM
 Czech Republic
CC-EM
 Denmark
HC-AM
 Djibouti
CN-FM
 DominicaHC-AM
 Dominican Republic
HC-AM
 East Timor
 Ecuador
CC-MX
 Egypt
CC-EM
 El SalvadorHC-MX
 Equatorial Guinea
CC-EM
 EritreaHC-EM
 Estonia
HC-AM
 Ethiopiaother
 Fijiother
 Finlandother
 France
CN-FM
 Gabon
CC-EM
 Gambia
HC-AM
 Georgia
HC-AM
 GermanyCC-EM
 Ghana
HC-AM
 Greece
HC-MX
 GrenadaHC-AM
 GuatemalaCC-MX
 Guinea
HC-AM
 Guinea-Bissaunone
 GuyanaHC-AM
 HaitiHC-AM
 HondurasHC-MX
 Hong Kong
other
 HungaryCC-EM
 Iceland
HC-EM
 India
HC-AM
 Indonesia
HC-MX
 IranCN-FM
 Iraq
none
 IrelandHC-AM
 Israel
HC-AM
 Italy
CC-EM
 Ivory Coast
CN-FM
 JamaicaHC-AM
 Japan
HC-AM
 Jordan
 KazakhstanCN-EM
 Kenya
HC-AM
 KiribatiHC-AM
 Kosovo
HC-EM
 Kuwaitnone
 KyrgyzstanCC-EM
 Laos
none
 LatviaCC-EM
 Lebanon
CN-EM
 Lesotho
none
 Liberianone
 Libyanone
 LiechtensteinHC-EM
 LithuaniaCC-EM
 LuxembourgCC-EM
 MacedoniaCC-EM
 Madagascar
CC-EM
 MalaysiaHC-AM
 Malawi
HC-AM
 Maldives
none
 Mali
CC-EM
 Malta
CC-EM
 Marshall IslandsHC-AM
 Mauritania
CN-EM
 Mauritius
other
 MexicoHC-AM
 MicronesiaHC-AM
 MoldovaCC-EM
 Monaco
HC-EM
 MongoliaCC-EM
 MontenegroCC-EM
 Morocco
CN-FM
 Mozambique
CN-FM
 Myanmar
other
 Namibia
HC-AM
   Nepal
HC-AM
 Netherlands
none
 New ZealandHC-AM
 NicaraguaHC-EM
 Niger
HC-EM
 NigeriaHC-AM
 North Korea (DPRK)none
 Norway
HC-AM
 Omannone
 Pakistan
other
 PalauHC-AM
 Panama
HC-EM
 Papua New Guinea
HC-AM
 ParaguayHC-EM
 Peru
CC-MX
 PhilippinesHC-EM
 PolandCC-EM
 Portugal
CC-MX
 Qatarnone
 Romania
CC-EM
 Russia
CC-EM
 Rwanda
CC-EM
 Saint Kitts and Nevis
HC-AM
 Saint LuciaHC-AM
 Saint Vincent and the Grenadines
HC-AM
 SamoaHC-AM
 San Marino
CC-EM
 São Tomé and Príncipeother
 Saudi Arabia
none
 Senegal
CN-EM
 Serbia
CC-EM
 SeychellesHC-AM
 Sierra Leone
HC-AM
 Singapore
HC-AM
 Slovakia
CC-EM
 SloveniaCC-EM
 Solomon IslandsHC-AM
 Somalia
 South Africa
CC-EM
 South Korea
CC-EM
 South Sudan
 Spain
CC-EM
 Sri LankaCC-EM
 SudanHC-EM
 Suriname
CC-EM
 Swaziland
HC-AM
 SwedenHC-AM
  Switzerland
HC-MX
 Syria
CC-EM
 Taiwan (Republic of China, ROC)
HC-MX
 TajikistanCC-EM
 Tanzania
HC-AM
 Thailand
CC-EM
 TogoCC-EM
 TongaHC-AM
 Trinidad and TobagoHC-AM
 Tunisia
none
 Turkey
CC-EM
 Turkmenistan
none
 TuvaluHC-AM
 Uganda
HC-EM
 Ukraine
CC-EM
 United Arab Emiratesother
 United Kingdomother
 United StatesHC-AM
 Uruguay
HC-EM
 UzbekistanCC-EM
 VanuatuHC-AM
  Vatican City
none
 Venezuela
HC-MX
 Vietnam
none
 Yemen
HC-EM
 ZambiaHC-EM
 Zimbabweother
In specific jurisdictions
See also
References
  1. ^ Montesquieu, Baron Charles de, The Spirit of the Laws
  2. ^ Article 120 of the Netherlands Constitution
  3. ^ ESKRIDGE ET AL., supra note 532, at 1207 (“Presumption in favor of judicial review.”); id.(“Rule against interpreting statutes to deny a right to jury trial.”); id.(“Super-strong rule against implied congressional abrogation or repeal of habeas corpus.”); id. at 1208 (“Presumption against exhaustion of remedies requirement for lawsuit to enforce constitutional rights.”); id.(“Presumption that judgments will not be binding upon persons not party to adjudication.”); id.(“Presumption against foreclosure of private enforcement of important federal rights.”). See, e.g., Demote v. Hyung Joon Kim, 538 U.S. 510, 517 (2003). But see SCALIA &GARNER, supra note 532, at 367 (describing as a “false notion” the idea “that a statute cannot oust courts of jurisdiction unless it does so expressly”).
  4. ^ Australian Communist Party v Commonwealth (1951) 83 CLR 1 AustLII
  5. ^ The strength of the combination Government - Parliament ... far from outperform the reasons of the Constitutional scrutiny, makes the judicial review more necessary than ever: Buonomo, Giampiero (2006). "Peculato d'uso: perché il condannato non può fare il Sindaco. Dalla Consulta "no" ai Dl senza necessità e urgenza". Diritto&Giustizia Edizione Online.  – via Questia(subscription required)
  6. ^ "Tables & Map". ConCourts. Archived from the original on 2019-02-14. Retrieved 2019-02-13.
Further reading
External links
Last edited on 24 March 2021, at 14:26
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