Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. A specific court 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 check and balances in a modern governmental system (where the judiciary checks the other 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. udicial review of administrative acts Most modern legal systems allow the courts to review administrative acts (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally-enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration. In other countries (including the United States, Scotland 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). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). 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. Within the English jurisdiction judicial review as of June 2012 is an arbitrary course of action as this avenue of appeal is now covered by the Judicial Review and Courts Act 2012. Judicial review of primary legislation There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature. Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.[1][dead link] Review by general courts In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803. A similar system was also adopted in Australia. Review by a specialized court In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court. This system was later adopted by Austria and became known as the Austrian System, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court. Brazil adopts a mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the laws adequacy to the Brazilian Constitution only binds the parties to the lawsuit; in the second, the C
Posted on: Fri, 06 Sep 2013 13:47:22 +0000
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