Judicial review

Judicial review is a vital legal process used to oversee government actions. It allows the judiciary, which is the court system, to examine the work of other branches. These branches include the legislature, which makes laws, and the executive, which carries them out. Through this process, a court can invalidate or cancel laws and actions. This happens if they are incompatible with a higher authority, such as a constitution. Judicial review acts as a key part of the separation of powers. It ensures that no single branch of government exceeds its legal authority.

The mechanism of judicial review works by checking for legal consistency. A court examines an executive decision, a statute, or an administrative act. One major principle used is ultra vires. This term means that a public body must not exceed the powers given to it by law. Courts also look for procedural fairness. This means they ensure that the correct steps and rules were followed during a decision. If a law violates the terms of a constitution, the court can declare it invalid. This keeps the government bound by the supreme rules of the land.

There are different ways that societies organize this power. One way is through the separation of powers. This idea suggests that government branches should remain distinct to maintain balance. Another way is through legislative supremacy. In this system, the legislature is the highest authority. Some countries use common law systems, where judges can create or reject legal principles. Other countries use civil law systems, where judges mainly apply existing laws. These different legal traditions change how judicial review is practiced.

History shows how these powers were established and tested. The thinker Montesquieu introduced the idea of the separation of powers. In the United States, the Supreme Court solidified this in 1803. This happened during the landmark case Marbury v. Madison. The court ruled it had the power of judicial review to enforce the Constitution. Even though President Thomas Jefferson expressed opposition, the principle remained. This decision became a foundation for how the U.S. government functions today.

Different nations have developed very specific rules for review. In the United Kingdom, judges cannot strike down primary legislation due to parliamentary sovereignty. However, tension arose when the UK joined the European Union. The Court of Justice of the European Union holds its own power of judicial review. In the Netherlands, Article 120 of the Constitution forbids courts from ruling on the constitutionality of primary legislation. These examples show that the scope of judicial review varies greatly between different countries.

Some countries use specialized systems to handle these complex legal questions. In 1920, the jurist Hans Kelsen helped create a model for specialized constitutional courts. This was used in Czechoslovakia and Austria, and is known as the Austrian System. In this model, regular courts cannot question the constitutionality of primary laws. Instead, only the specialized Constitutional Court has that specific power. This creates a clear and dedicated path for resolving disputes about the highest laws.

Other nations use their general court systems for these tasks. Australia, Canada, and the United States all use courts of general jurisdiction. In Australia, judicial review often focuses on the lawfulness of executive actions. In India, the Supreme Court uses its power to protect fundamental rights. A major decision in 1973, Kesavananda Bharati v. State of Kerala, established the basic structure doctrine. This allows the court to strike down even constitutional amendments if they violate the core of the constitution.