political science seminar

Judicial Review

Comparative study of Norway, South Africa, Germany and Australia

Kanika Chhabra

19-Feb-14SAP ID- 500028453

Roll:- 54

Introduction

Judicial review is the power of the courts to determine the constitutionality

oflegislative act in a case instituted by aggrieved person. It is the power of the

court to declare legislative act void on the grounds of unconstitutionality. It has

been defined by smith and zurcher , “ the examination or review by the courts , in

cases actually before them , of legislative statutes and executive or administrative

acts to determine whether or not they are prohibited by a written constitution or

are in excess of powers granted by it, and if so, to declare them void and of no

effect” . It prevailed in a country having a federal constitution.

The USA gave to the world a new gleam of judicial review. The concept

ofJudicial Review as evolved in America was the reset of the continuous

thinking and growth. The doctrine of the judicial review of the USA is really the

precursor of judicial review and the other constitution of the world which evolved

after the 18th century and in India also it has been a matter of great inspiration.

Nature of judicial review

Judicial review enables a person aggrieved by an administrative decision (or

refusal to make a decision, or action, or inaction) to seek review by a court of the

lawfulness of that decision.

The court will not review a decision in order to determine whether or not it was

the right decision to make. The court will only review a decision so as to

determine whether it was a lawful decision (i.e. whether it was within the power

of the decision-maker).

If the court finds that the decision was not a lawful decision, it may set aside that

decision. Normally, the court will then remit the decision back to the original

decision-maker to be made again. (Research shows that the fresh decision is often

more favorable to an applicant than the first decision that was set aside.)

Judicial review is a complicated and specialist area of law. And to consider

seeking legal advice before commencing any judicial review proceeding.

Judicial review must normally be sought in a superior court, such as the Victorian

Supreme Court, the Federal Court of Australia or even the High Court.To seeks

judicial review proceeding there will be need to:

determine what remedies to seek

make sure to comply with any applicable time limits

make sure to have standing to challenge the action

select one or more grounds of review

Judicial Review of Norway

The Norwegian system of judicial review of the constitutionality of legislative

norms is the second oldest in the World. With no explicit basis in the

Constitution of 1814 (still in existence and hence the second oldest still in

existence in the World as well),the final decisions which mainly those of the

Supreme Court were systematically respected by the other constituted powers.

Immediately after the Supreme Court judges were forced (by a 1863 statute) to

vote individually while stating their reasons in public, the first case came (1866)

where the reasons clearly expose the doctrinal basis of judicial review on which

the activity of the judiciary (namely the Supreme Court itself) were based.

The system of judicial review in Norway is its concrete character .i.e. that judicial

review of the constitutionality of ordinary legislation can only be undertaken in

connection with individual cases brought forward by someone with sufficient

legal interest in having it resolved. Hence, it is not feasible to have the

constitutionality of a sub-constitutional norm as such, i.e. in abstracto, tested by

the judiciary.

The Norwegian system of judicial review is part of the family of “American”

system as opposed to the “European” model characterized by the existence of

specialized constitutional courts. Recently, there have been debates on the

opportunity of instituting a constitutional court in Norway especially after the

Supreme Court’s decision of 2010 on the Shipping Tax

(rederiskattdommen).Review takes place in any case where constitutional norms

intervene and need to be addressed in order to determine the legal answer to be

given. The review system is “decentralized” or “diffuse” in the sense that any

court (and any judge) asked to decide upon a case where constitutional issues are

involved, will have to act as a “constitutional judge”.

CHARACTERISTICS OF THE REVIEW :-

Review may take place in cases of any kind (civil, administrative, and

penal/criminal).

Review operates only in individual cases (in concerto).

Review takes places only ex post that is to say after the contested provision has

been set in force and has given rise to problems of a constitutional kind (art. 83 of

the Constitution).

Constitutional questions of some importance or complexity will normally be

decided by the Supreme Court in the last instance by way of appeal (art. 88 of the

Constitution).

The courts do not have the power to try the constitutionality of a statute on their

own initiative.

When a law is declared unconstitutional, it is not applied. It is “put on the side”

(“loven settes till side”). In theory, effect of the decision = inter partes only; but

the “actual” effect may very well be erga omnes when/as it sets a precedent for

other cases.

Judicial Review of Australia

Judicial review plays an important role in Australia’s system of government as a

means of ensuring the accountability of public officials for the legality of their

actions. Judicial review at a federal level has been available under the

Constitution since the inception of the Commonwealth. 

The introduction of statutory judicial review under the Administrative

Decisions (Judicial Review) Act 1977 (‘ADJR Act’) provided a simplified

procedure for judicial review.The ADJR Act commenced in 1980 and judicial

review litigation since then has led to major developments in the legal

principles associated with judicial review.

There is the release ofConsultation Paper which examines the federal system

and raises issues about the future direction of judicial review including:

the examines the federal system, both general and specific, in light of the

fact that constitutional judicial review is entrenched and cannot be

excluded by legislation

the ambit and provisions of a general statutory review scheme, if such a

scheme is to be effective, and

The general principles that should to apply to any statutory review

scheme, and guidance as to whether and when specific statutory review

mechanisms are appropriate.

RECENT HISTORY:-

Before looking at the future, it might be useful to look at the way judicial review

has developed in recent years and where it now stands.

The administrative reforms of the 1970's provided the most important influence

on judicial review in recent times, but it is not the only significant influence. 

Another very significant matter is the contribution ofthe High Courtto a

particularlyits contribution withrespect to what used to be called the prerogative

writs, but are now called the constitutional writs. 

This development in the law is associated with the High Court's well developed

separation of powers doctrine.  We should not forget, however, that developments

are ultimately driven by cultural changes flowing from the ever increasing

relevance of government decisions to the daily life of Australians. 

To an extent this reflects government intrusion in private affairs; but that is not all

bad.  The intrusion begins with the protection of the public interest through the

regulation of activities which might harm individuals, such as the giving of bad

financial advice.  It extends to the raising of revenue and the redistribution of

wealth through social security.  Although beneficial, all these matters impact on

the financial and personal interests of citizens.  The increasing impact of

government decision-making (of administrative decision-making) on citizens, has

inevitably led to the development by the courts, and the government itself, of

mechanisms for more and more scrutiny of the decisions.  To an extent, the courts

have simply been responding to these pressures and government activity which

addresses them.

CHARACTERISTICS OF THE REVIEW:-

The judicial review is conducted by the "ordinary courts of the land" and there

are no special administrative or constitutional courts.

Superior courts of general jurisdiction are traditionally regarded as having

inherent jurisdiction to review administrative actions.

Under the doctrine of astrict separation of power, courts can only review the

legality of decisions and actions, not their merits. The distinction between legal

review and merits review is sometimes difficult to make.

The fundamental purpose of judicial review is to ensure that powers are

exercised for the purpose for which they were conferred and in the manner in

which they were intended to be exercised.

The distinction drawn by Brennan J between judicial review and merits review is

a fundamental principle of Australian administrative law.Brennan J’s

formulation that judicial review is directed to “enforcing the law which

determines the limits and governs the exercise” of power is a widely accepted

statement of the dichotomy between legality and the merits.The law can be

statutes or the common law.

Judicial Review of South Africa

There are three types of judicial review in the South African system:-

1. review of the decisions of inferior courts;

2. the common-law review of decisions of administrative authorities; and

3. A "wider" form of statutory review.

These three forms of review still exist today, but the list has been expanded as a

result of modern developments, including and most especially the Constitution.

Among the latest additions are:-

automatic review, which allows the decisions of inferior courts to be

reconsidered in the absence of an application for review;

constitutional review, a form of review that did not exist in South Africa

before 1994, but which the existence of a supreme constitution with a

justifiable Bill of Rights permits; and

What used to be common-law review in administrative law but has now

largely been constitutionalised by section 33 of the Constitution and placed on

a statutory footing by the Promotion of Administrative Justice Act (PAJA).

CHARACTERISTICS OF THE REVIEW:-

Contains a detailed analysis of the definition of the act, the grounds of review,

remedies and procedures

Focuses on the grounds of review and the requirements of valid administrative

action

Discusses the approach of the courts to these grounds of review in terms of

thecomman law, the constitution and the act by concentrating on the court’s

interpretation of the law, develops a practical approach built on a sound

conceptual basis.

Judicial Review of Germany

A major function of constitutional theory in Germany, as in the United States, is

to resolve “the tension between representative democracy and constitutional

review in a way that both justifies and regulate their coexistence.” Numerous

commentators have sought to mark the boundary between legislation and

constitutional ad- judicator and to comprehend the f ne line that the Federal

Constitutional Court has drawn between law and politics.

In cases involving disputes between high constitutional organs (i.e., separation of

powers, or Organstreit) or those brought by political minorities, proceedingson

abstract judicial review, the Court occasionally makes an ally of time, delaying

decision until the controversy loses its urgency or is settled by political means,

prompting the initiating party ultimately to withdraw the case. Largely because of

this tactic, through 2011 the Court has resolved 168 of 180 Organstreit

proceedings and 163 of 172 abstract judicial review proceedings.

CHARACTERISTICS OF THE REVIEW

In German law, apart from rescissory litigation, there is litigation for mandatory

injunction, litigation for performance, and litigation for declaratory judgment.

Germany adopted the principle of separation of state powers, but this did not

become a reason to deny remedies other than rescissory litigation. The system that

administrative acts are both legally binding and self-executing comes from

German administrative jurisprudence.

However, under the present German judicial review system, after a lawsuit is

lodged against the administrative act under question, the self-executing effect is

automatically suspended. The provisional remedy is based on the idea that the

fundamental rights of citizens have to be respected and protected as much as

possible.

Comparative study of judicial Review of Norway, Australia,

Germany and South Africa

The Norwegian system of judicial review of the constitutionality of legislative

norms is the second oldest in the World. Judicial review of Norway is concrete

character. The review system is decentralized.Review may take place in cases of

any kind.Review operates only in individual cases.Judicial review plays an

important role in Australia’s system of government. It examines the federal

system,the ambit and provisions of a general statutory review scheme andthe

general principles that should to apply to any statutory review scheme.There are

no special administrative or constitutional courts.Under the doctrine of a

strict separation of power, courts can only review the legality of decisions and

actions, not their merits. In South Africareview of the decisions of inferior courts,

the common-law review of decisions of administrative authority and a "wider"

form of statutory review are the forms of judicial review.

In which automatic review allows the decisions ofinferior courts to be

reconsidered in the absence of an application for review. Germanyadopted the

principle of separation of state powers.There is litigation for mandatory

injunction, litigation for performance, and litigation for declaratory judgment..

The provisional remedy is based on the idea that the fundamental rights of

citizens have to be respected and protected as much as possible.

REFERENCE

www.uio.no/studier/emner/jus/jus/JUR1020/.../jur1020_Lecture3PPT.ppt

www.uio.no/studier/emner/jus/jus/.../h12/.../jutintrolecture3ppt2012.pdf

www.jstor.org/stable/837741

aw.huji.ac.il/upload/Mreport-on-missing-debateUp.doc

books.google.co.in/books?isbn=0792329686

www.bizcommunity.com/Article/196/546/77871.html

onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1958.tb00497.../pdf

www.gvpt.umd.edu/lpbr/subpages/ reviews /ginsburg1203.htm

www.gvpt.umd.edu/lpbr/subpages/reviews/ginsburg1203.htm