judicial review

Definition of judicial review

Further reading

Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution). Judicial review is an example of the separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

General

Judicial review is one of the main characteristics of government in the United States and similar democracies. It can be understood in the context of two distinct-but parallel-legal systems (civil law and common law), and also by two distinct theories on democracy and how a government should be set up (the ideas of legislative supremacy and 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are seen as sources of law, capable of creating new legal rules, and also capable of rejecting legal rules that are no longer valid.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 rules.

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 French philosopher Charles de Secondat, Baron de Montesquieu; it was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison. Separation of powers is based on the idea that no branch of government should be more powerful than any other; each branch of government should have a check on the powers of the other branches of government, thus creating a balance of power 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 (although the power itself is only implicitly granted). 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 the 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, the judicial body in the United Kingdom does 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 the the UK's tendency toward legislative supremacy and the EU's legal system (which empowers the Court of Justice of the European Union with judicial review).

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 Federal Constitution of Malaysia instituted a system based on that of India which was in turn influenced by other constitutions including that of the United States. Judges are empowered to declare laws or executive actions ultra vires if they clashed with the Constitution and/or the parent legislation. However, this power was curbed after the 1988 Malaysian constitutional crisis by then Prime Minister Mahathir bin Mohamad through amendments to the Federal Constitution. A particularly significant amendment was the removal of the judicial power and subjecting the judiciary to such jurisdiction and powers as may be conferred by or under federal law. The merits of detentions made under the Internal Security Act are also not subject to judicial review, but the procedures are.

Judicial review in English law

Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.

Unlike the United States and some other jurisdictions, the English doctrine of parliamentary supremacy means that the law does not know judicial review of primary legislation (laws passed by the Parliament of the United Kingdom), except in a few cases where primary legislation is contrary to the law of the European Union. A person wronged by an Act of Parliament therefore cannot apply for judicial review except in these cases.