Examination by a country's courts of the actions of the legislative, executive, and administrative branches of government to ensure that those actions conform to the provisions of the constitution. Actions that do not conform are unconstitutional and therefore null and void. The practice is usually considered to have begun with the ruling by the Supreme Court of the United States in
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Most modern legal systems allow the courts to review administrative acts, i.e. individual decisions of public body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain governmental systems, most notably in France and Germany, have implemented a system of administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration. In other countries, e.g. the United Kingdom and the Netherlands, 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. 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
Many of the countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special constitutional courts that have the exclusive authority to deal with this issue: see List of constitutional courts.
Like the United States, Hong Kong courts also held that they may review as to whether legislation passed by the legislature are in compliance with the Basic Law. This is different from the situations in UK where the court may have no such jurisdiction under the traditional doctrine of supremacy of parliament. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.
The reason traditionally given for the lack of judicial review is the Swiss system of popular democracy: If 50,000 citizens so demand, any new statute is made subject to a popular referendum. In this sense, it is the people themselves that exercise review.
The situation described above for Swiss federal law applies mutatis mutandis to the constitutional and legal systems of the individual cantons. However, owing to the derogatory power of federal law, federal courts as a matter of course exercise judicial review on cantonal law, as well as on federal executive law (ordinances, executive orders etc.).
Judicial review is a procedure in English administrative law by which English courts supervise the exercise of public power. A person who feels that an exercise of such power by, say, a government 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. If the application for judicial review is successful, the Court may set aside (quash) the unlawful act. In certain limited circumstances, the claimant may be able to obtain damages. A court may also make a mandatory or prohibitory order or an injunction to compel the authority to act lawfully or to stop it from acting unlawfully.
Unlike in the United States and some other jurisdictions, English law does not recognize judicial review of primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to EU law (see Factortame). Although the Courts can review primary legislation to determine its compatibility with the Human Rights Act 1998, they have no power to quash or suspend the operation of an enactment which is found to be incompatible with the European Convention of Human Rights - they can merely declare that they have found the enactment to be incompatible.
The Constitution states in Article III that:
The 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… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…
The legal case Marbury v. Madison, the basis for the exercise of judicial review in the United States, is an interpretation of the Constitution as applying to the law and politics of government. It implies the power of federal courts to consider or overturn any congressional and state legislation or other official governmental action deemed inconsistent with the Constitution, Bill of Rights, or federal law.
Opponents of judicial review have charged that the Supreme Court's power to invalidate Federal and state laws or actions has no counterpart in common or civil law, and has no textual basis in the United States Constitution. The law of the United States derives in great part from the common law traditions the colonies inherited from Britain, which arguably have vested the power of judicial review in the people since the signing of the Magna Carta in 1215.
Proponents of the doctrine argue that while it is true that judicial review is not mentioned in the Constitution, it is likewise true that the Constitution makes no explicit mention of the adversarial system, stare decisis, or virtually any other specific aspect of the common law. The argument is therefore made that these concepts were necessarily implicit in what the Framers understood by the term "the judicial power," and therefore should govern the Constitution's interpretation. See Barnett, The Original Meaning of the Judicial Power
There is an arguable case that while judicial review is not explicitly written into the Constitution, it could be implied by the provision in Article Six,
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land...which would imply that the laws of the United States which are not in pursuance to the Constitution are not the supreme law of the land. The remainder of Article Six
and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.clearly means that a State law or state Constitutional provision in contravention to Federal law (which is in pursuance to the Constitution of the United States) or to the Constitution is invalid, and that the Constitution implies that judges are the proper authority to find a provision unconstitutional, and this power could equally apply to a Federal law which is not in pursuance to the Constitution.
It is for these reasons that the so-called Article 39 opponents contend that the Anglo-American tradition establishes the concept of the jury as the regulating body in legal matters, rather than the government itself. However this criticism of the Supreme Court's jurisprudence has never been articulated by any U.S. court, and it is disputed by the United States legal establishment for the following reasons.
While American constitutional law derives many of its forms and traditions from the common law, it is important to note that the constitutional order of the United States was very different from that of the United Kingdom. As the Marbury vs. Madison Supreme Court observed, the Constitution's written nature, and the formal enumeration of the powers of government would be empty promises if there were no means to measure the actions of the government against The Constitution, and strike down those found wanting (see Marbury, supra, at 177) ("[c]ertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void"). It is the predominant view in United States constitutional jurisprudence that, because the Magna Carta is only the distant progenitor of the Due Process clauses, the Constitution is far from vesting judicial review in United States juries. In any event, and as a practical matter, the "final authority" regarding the United States Constitution is not the Supreme Court but the political will of the people, acting through the powers granted them by way of the Article V amendment powers (i.e., amendments are either proposed by Congress or by way of constitutional convention mandated by the state legislatures. Then they are either approved or rejected by 3/4 of the states through representatives of the people.)
Judicial Attitudes to Judicial Review: A Comparative Examination of Justifications Offered for Restricting the Scope of Judicial Review in Australia, Canada and England
Apr 01, 2010; [Legislative reform of judicial review in Canada and Australia has encountered unexpected difficulties. Judicial attitudes appear...