Judicial review

Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. The court has the power to strike down that law, to overturn the executive act, or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society.

Judicial Review in the United States

The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, where it says that "[t]he 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." Judicial Review in the United States was established by the Supreme Court case, Marbury v. Madison.

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 ultimate court for deciding the constitutionality of state law under state constitutions is the highest appelate court in each state -- usually called a Supreme Court, but also sometimes known as the Court of Appeals.

Judicial Review in the United Kingdom

In the case of the United Kingdom, such a power conflicts with the principle of parliamentary supremacy, though United Kingdom courts have been able, through concepts such as the rule of law and the prerogative writs, to control the arbitrary excercise of government power. The incorporation under the Human Rights Act 1998 of the European Convention on Human Rights has attempted to strike a balance, by allowing U.K. courts to issue a "declaration of incompatibility" regarding offending legislation, leaving it to parliament to make any necessary changes. In the Courts of England and Wales, judicial review is more commonly used to refer to the exercise of the prerogative writs of mandamus, habeas corpus, certiorari and prohibition by the Administrative Court. These are ancient writs issued by the courts against (in particular) the executive branch of government where the executive has acted unlawfully. The two most important powers are to force the executive to reconsider a decision, or to prevent an unlawful act from taking place in the future. The grounds for such judicial review include capriciousness, bias, failing to take account of relevant factors and so-called "Wednesbury unreasonableness" - that is a decision so unreasonable that no reasonable person could properly have reached it. The courts will not interfere, however, if the decision, although arguably flawed, was one that was arguably open to the executive to reach.

Judicial Review in Canada

In Canada, the same principle applies as in the British parliamentary system, though since the Constitution of Canada created a federal state there was an issue of the division of powers so while there were questions regarding judicial review when jurisdictional conflicts arose, there was no clear power to overturn laws based upon other grounds. It is important to note that the courts in each province, while provincial, are courts of plenary jurisdiction under the Canadian constitution and are held to have the traditional powers of judicial review such as in England and Wales. Regarding the review of administrative decisions by public officials the concepts of fundamental justice and overturning of patently unreasonable decisionmaking have developed along with the evolution of the royal writs as in the United Kingdom. In 1982 when the patriated Canadian Constitution came into force the Canadian Charter of Rights and Freedoms created a clear written power of judicial review. In that document, the Supreme Court of Canada was granted the power of judicial review beyond the power that it had held prior to that date. This power can be overridden by governments by invoking the notwithstanding clause in legislation. However, it is a mechanism which is considered increasingly dangerous politically as the public respect for the constitution and its Canadian Charter of Rights and Freedoms has increased over time.

Judicial Review in Germany

In Germany, judicial review is a legal principle defined and guaranteed by the German constitution (often referred to as the Basic Law or Grundgesetz). Judicial review is indeed intended as a safe guard against majority tyranny and has been successfully employed to challenge, for example, the national census efforts of the German government in the 1980s. In particular, article 93 states that the Federal Constitutional Court (BVG) shall rule:

1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body;

2. in the event of disagreements or doubts respecting the formal or substantive compatibility of federal law or Land law with this Basic Law, or the compatibility of Land law with other federal law, on application of the Federal Government, of a Land government, or of one third of the Members of the Bundestag;

2a. in the event of disagreements whether a law meets the requirements of paragraph (2) of Article 72, on application of the Bundesrat or of the government or legislature of a Land;

3. in the event of disagreements respecting the rights and duties of the Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight;

4. on other disputes involving public law between the Federation and the Länder, between different Länder, or within a Land, unless there is recourse to another court;

4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been infringed by public authority;

4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land;

5. in the other instances provided for in this Basic Law.

Also, article 93 provides that any court, as part of its proceedings, may request the Federal Constitutional Court or the appropriate land court to review a particular statute's constitutionality or compatibility with applicable international law.