The term ‘judicial review’ has different meaning and scope in different jurisdictions. For example, in the United States, judicial review refers to the power of a court to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.
Broadly speaking, the term judicial review may have the following two meanings: “Higher court’s review of a lower court’s (or an administrative body’s) factual or legal findings” or “Supreme Court’s power to decide whether a law enacted by the legislature is constitutional or not.”
But in the United Kingdom’s context, the term judicial review refers to the power of the judiciary to supervise the activities of governmental bodies on the basis of rules and principles of public law that define the grounds of judicial review. It is concerned with the power of judges to check and control the activities and decisions of governmental bodies, tribunals, inferior courts…. (Cumper, P.291.) 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 … Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to the EU law. 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. (http://en.wikipedia.org/wiki/Judicial-review) The principle of Parliamentary supremacy in the UK implies that the Parliament can legislate on any matter. Thus, the principle of Parliamentary supremacy in the UK dictates that the judiciary cannot review a law enacted by the Parliament.
However, appreciating the differences concerning the meaning of judicial review among jurisdictions, for the purpose of this discussion, the term judicial review is taken in its narrow sense: it meant the power of the court to supervise/ control the legality of the powers of administrative agencies. Judicial review is the exercise of the court’s inherent power to determine whether an agency’s action is lawful or not and to award suitable relief. Judicial review is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law (Wade & Forsyth, PP. 33-34) The primary purpose of judicial review is to keep government authorities within the bounds of their power.
Judicial review Vs. Merits Review
In terms of purpose and scope, merits review of an agency’s decision is different from judicial review (technical review). As was stated somewhere else, the purpose of merits review action is to decide whether the decision which is being challenged was the ‘correct and preferable’ decision. If not, the reviewing body can overrule such decision and substitute it with a new decision it deems ‘correct and preferable’ under the given circumstance. The issue in merits review is to test whether decision complained is ‘right or wrong’. The process of merits review will typically involve a review of all the facts that support a decision. Merits review is said to be the sole responsibility of the executive, because the person or tribunal conducting the review ‘stands in the shoes” of the original administrative decision maker. Administrative tribunals are not bound by strict rules of evidence and seek to provide a less formal atmosphere than the courts. If the reviewing body would make a different decision, then that decision will be substituted for the original decision. As practices of different countries indicate, the power to conduct merits review of an agency’s decision may be conferred to a court (in the form of appeal), a special tribunal, or a general administrative tribunal
Whereas, judicial review is a technical review; while reviewing an agency’s decision, the court is concerned with the legality or illegality of the decision under review. If the court finds out the decision is legal, it will not do anything on it even if the decision deems incorrect in terms of preference. But if the court finds out the decision against which review is sought is illegal or ultra vires, it can set it aside and order the concerned agency to reconsider the decision based on the directions of the court. The reviewing court does not substitute its own new decision in place of an agency’s invalidated decision on account of illegality. In one case, the phrase judicial review was described in the follows terms:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative error or injustice, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone ((Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36 per Brenan J.))
The fundamental principle of judicial review is that “all power has its limits,” and when administrative decision-makers act outside of those limits, they may be restrained by the judiciary. Judicial review does not prevent wrong decisions; it, instead, prevents them from being made unjustly. It does not matter whether the judge who is reviewing the decision would himself or herself has arrived at a different conclusion to the administrative decision-maker. The decision will only be interfered if there was some illegality in the process by which it was made. The jurisdiction of the court is confined to quashing the decision and remitting the matter back to the original decision-maker for determination in accordance with the law. This may not always be satisfying- either for individual judges or for the party seeking relief- but it is often unfairness in the making of a decision, rather than the decision itself, that causes people the greatest distress (Justice Peter McClellan, p.4)
Unlike merits review which is statutory in origin, the source of judicial power is not statute; statutory authority is not necessary the court is simply performing its ordinary functions in order to enforce the law. The basis of judicial review, therefore, is common law (Wade & Forsyth, P.34) However, it has to be noted here that, although a statutory empowerment may not be necessary to exercise judicial review, this power can be taken away from the court by a statute. For example, in French, regular/ordinary courts have no supervisory power over the activities of government agencies. That is, regular courts cannot claim inherent power of judicial review to challenge administrative acts. This is the mandate of the French administrative tribunals that are established outside the structure of the ordinary courts. There are also countries that confer statutory judicial review power to ordinary courts in order to supervise and ensure legality in administrative decision-making.
The Bases of the Power of Courts to Supervise Administrative Action
Concerning the basis or the sources of the power of ordinary courts to supervise (review) administrative actions, there is no single universally applicable formula that is accepted by all jurisdictions. As indicated above, some authorities state that judicial review is the exercise of the court’s inherent power to determine whether an action is lawful or not. According to these authorities, since the basis of judicial review is common law, no statutory authority is necessary: the court is simply performing its ordinary functions in order to enforce the law (Wade & Forsyth, P.34). But the practices in some other countries indicate that statutes may empower ordinary courts to review administrative acts based on defined criteria thereof. For example, Australia, appreciating the arcane and complications of the common law practice and procedures relating to judicial review, codified the principles of judicial review; reform the procedures for commencing a judicial review proceeding; confer supervisory jurisdiction upon a specialist Federal Court. These criteria are clearly provided under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (‘AD (JR) Act’. The practice in Australia indicates that judicial review of administrative decisions is possible by other methods besides the AD (JR) Act, such as review by the High Court in its original jurisdiction conferred by section 75(v) of the Constitution, and review by the Federal Court under section 39B of the Judiciary Act 1903.
The system of judicial remedies is derived from two main sources. First, there is a group of statutes which establishes an agency and incorporates provisions for the review of its actions. Second, there is a branch of remedies which has been developed by the combined action of the common law and statutes consolidating, simplifying, or in some other ways reforming the common law remedies. These remedies are certiorari, mandamus, prohibition, habeas corpus, quo warranto (the so- called prerogative writs), damages suits, bill in equity, and defense to enforcement proceedings. To them, modern statutes have added the declaratory judgment procedure. These remedies are available where no specific review has been provided, or where the specific review provisions have been drafted in such a way as to make them unavailable for the review of certain decisions of the agency.
No two of these systems are identical. The same administrative action may be controlled in one state by a specific statutory provision, in another by certiorari, in another by mandamus, in a fourth by injunction, and in a fifth it may be doubtful whether it is subject to control at all. Assuming the availability of any relief, the remedies may be both complementary and supplementary. If certiorari is not available, mandamus may be, and if neither, the proper remedy may be injunction; and different questions relating to the same proceeding may have to be tested by different means. Nevertheless, all of the systems are based on the system developed by English judges and parliaments. (Jaffee From Administrative Action, pp. 152-196)
The English judges were the King’s judges. As such they exercised his supreme plenary power of judicator. The King’s Bench issued writs, the so-called prerogative writs, to all the inferior officers. The writ ordered the officer to demonstrate the legality of this order or determination. The King’s courts also allowed actions for damages against an officer who by exceeding his powers had injured the plaintiff. The theory was that public officers were subject to “the law” as were the private citizens, i.e., they were answerable in the regular courts of law. It was this latter phenomenon of damage suit which came to characterize the “rule of law,’ though it is one aspect-and not the most impeared to exclude it. (Jaffee, pp. 152-196).
As can be inferred from the remarks made above, the basis of the power of the court to supervise (review) administrative decisions is either common law, or statute, or both as the case may be. However, the assertion that judicial review is the inherent power of the regular/ordinary courts may not always stand valid, as there are jurisdictions that do not allow judicial review of administrative decisions by regular courts at all. The French and other continental systems, for example, which follow the extreme version of separation of power doctrine, take away from the regular court the power of judicial review of administrative decisions; they have a system of administrative courts - the administrative counter part of regular courts within the administration is established to perform judicial function on administrative matters. But this does not mean that there is no judicial review in France and other continental law countries. It is to mean that this power is exercised by administrative courts not by regular courts, like in many common law jurisdictions.
In the United States, there is a different position. The US Federal Supreme court, as it is well known, not only has the power to review administrative decisions and subordinate legislations like in the case of United Kingdom, but also has the constitutionality of any act be it a parliamentary legislation or any act of the government administration. The US Supreme Court can render a primary legislation invalid on constitutionality ground. One may wonder concerning the source of this broad power of the court. There is no comparable common law practice expressly stated anywhere in the US Constitution. In a landmark case, Marbury v. Madison, the basis for the exercise of judicial review in the United States, is said to be an interpretation of the Constitution as applying to the law and policies of the government. This implies that the power of federal courts to consider or overturn any congressional and state legislation or other official governmental action is deemed inconsistent with the Constitution, Bill of Rights, or federal law.
The two important Articles incorporated under the US Constitution proponents of the doctrine often quoted are Article III and Article Six of the Constitution. In Article III, the Constitution says:
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…
Article Six of the US Constitution also dictates, “This Constitution and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme Law of the Land…” From the wordings of this provision of the Constitution, proponents of the doctrine inferred the laws of the United States which are not in pursuance to the Constitution are not the supreme law of the land. So, even though nowhere the constitution explicitly authorizes the Supreme Court to challenge acts of congress on constitutional ground, by the cross reading of the two Articles mentioned above, the US Supreme Court maintained the power to interpret the Constitution.
To extend similar argument to other administrative matters, the federal and state courts in the United States exercise supervisory (judicial review) power over administrative decisions and subordinate legislations. In this regard, courts can test the legality of the decision or administrative act in question against the Parent Act, or they can question even the legality of the Parent Act and decisions passed under its cover against the Constitution.
Coming back to the status of judicial review in Ethiopia, there is no clearly defined jurisprudence on the evolution and status of the judicial review. Judicial review of administrative decision dwells inthe fundamental principle of separation of power among the three conventional organs of the state: the legislature, the judiciary and the executive. Judicial review could be meaningful only when judicial power is ultimately vested in the judiciary and when the principle of rule of law reigns. Thus, a brief discussion of the evolution of the separation of power and the rule of law in Ethiopia is of great help in understanding the status of judicial review in historical perspective.
During the Imperial regime, the principle of separation of power was absent. The 1931 Constitution conferred to the Emperor uncontested and boundless executive, legislative and judicial power. In this regard, an authority named Scholler cited an important remark made by a famous Ethiopian writer, Mahtama Slassie, concerning the power of the Emperor as follows:
The Ethiopian Emperor has an uncontested and boundless power over the territory he rules. He is both the temporal and spiritual ruler. With the supreme sovereignty vested in him, he appoints or dismisses government officials, he gives gifts or refuses to give them, he imprisons or releases, he sentences criminals to death or punishes them, and does many other things of similar nature. (Scholler, p.35)
During the Imperial regime, the Emperor was the head of state and the government, the fountain of justice and equity, the supreme law giver. Emperor Haile Selassie I continued with this omnipotent power until he was demised by the military revolution of 1974. In short, the Emperor, during the period under discussion, was above the law. He was immune from any judicial procedure. Thus, the general opinion is that since ultimate judicial power was dwelling in the hands of the Emperor and the Emperor himself he was above the law of the empire. Thus, it would be nonsense to say that there was a meaningful room for judicial review during the Imperial regime of Ethiopia. Although the 1955 Revised Constitution of the Imperial Ethiopia, which was modelled under the U.S. Constitution, formally recognized the concept of judicial reviews. Since ultimate judicial power remained in the hands of the Emperor intact, it could not have practical meaning as such.
Following the downfall of the Monarchical regime by force in the 1974 the Provisional Military Administrative Council (PMAC) commonly known by the Amharic word ‘Derg’ overtook the political power. The Derg suspended the application of the 1955 Revised Constitution and ruled the country for almost thirteen years without having a constitution. After forming the Worker’s Party of Ethiopia (WPE) in 1984, which was the only party with the political power, the Constitution of the People’s Democratic Republic of Ethiopia (PDRE) was adopted in 1987. Article 62 of the Constitution vested supreme legislative power in the National Shango (assembly). The PDRE Constitution, as stated under Chapter XIV of the same, vested judicial power in courts that were established by law. The highest judicial organ was the Supreme Court. It had the authority to supervise the judicial functions of all courts in the country.
An important question that may be raised here is that whether or not the principle of separation of state power was duly recognized under the PDRE Constitution. In addition to the discussion made above, having a brief look to the power of the executive organ of the PDRE government has paramount importance in answering this question. Chapter XI of the PDRE, Constitution outlined the powers and duties of the President. Accordingly, the President who was to be elected by the National Shango was the head of the state, representative of the Republic at home and abroad and was the Commander-in-Chief of the Armed Forces. He had vast power to supervise the activities of the various organs of the government. Article 86( c) and ( e) of the Constitution, for instance, state that the President has the power, among other things, to ensure that the Council of Ministers, the Supreme Court, the Procurator General… carry out their responsibilities. The president had also the power to nominate the President and the Vice-President of the Supreme Curt for approval by the National Shango, and when compelling circumstances warrant it, he can between the sessions of the National Shango appoint and dismiss the same. The President had a wide opportunity to abuse his power since the National Shango was required to meet once a year unless emergency necessitates the calling of extra ordinary meeting. Although the Constitution required that the judges of the Supreme Court were to be elected and dismissed by the National Shango, since the Shango was in recess through out the year, the President had the opportunity to exercise his power in disguise.
The President and the Vice President of the PDRE were also the President and the Vice President of the Council of State, respectively. As stated under Article 82 of the PDRE Constitution, the Council of State had the power and duty to ensure the implementation of the Constitution and other laws, to interpret the Constitution and other laws, to revoke regulations and directives which do not conform to the Constitution Interpretation of laws during the Derg period was done not only by courts; state organs such as the National Shango, the Council of State and the General Procurator were also entrusted with such power.
From the facts provided above, one can understand that the PDRE Constitution not only vested supreme executive power in the hands of the Council of State, which was under the presidency of the PDRE President, but also judicial power such as interpretation of the Constitution and other laws as well as revocation of laws that contravene the constitution. Were also under the plisenderry of the PDRE President.It is also possible to say that the judiciary did not have administrative independency as the PDRE Constitution made the Supreme Court directly accountable to the President. Here is the paradox; he/she was the Chief-Executive and Head of the PDRE, the President whom the Constitution empowered to supervise the Supreme Court Judges in effect rendered judicial review non-existence during the Derg regime.
The Constitution of the Federal Democratic Republic of Ethiopia (FDRE) vested judicial powers both at federal and state levels in the courts. This is expressly stated under Article 79(1) of the Constitution. Thus, one may safely say that supreme judicial power under the FDRE is vested in the Judiciary. Being a final arbiter of the law, the judiciary can review and annul administrative decisions on grounds of legality. However, Ethiopian courts did not have the power to interpret the Constitution. This power was explicitly given to the House of the Federation in Article 62(1) of the FDRE Constitution. But this should not be construed to mean that courts could not invalidate an administrative decision or other subordinate legislation that contravened the clear words of the Constitution (in circumstances where there is no need for interpretation), provided that they have the very power of judicial review. So, an important question that should be raised here is that: Do Ethiopian courts have the power of judicial review? As was mentioned above, in some foreign jurisdictions like France, regular courts are prohibited from reviewing administrative decisions; France has full-fledged administrative tribunal systems that are established to resolve disputes on administrative matters in accordance with the principles and standards of administrative law. But, there is no such kind of institutional arrangement in Ethiopia, although technically speaking it seems possible. As can be inferred from Articles 37(1) and 78(4) of the FDRE Constitution, despite the existence of Article 79(1) of the same, judicial power is not exclusively vested in regular courts. Other bodies such as administrative courts can be established to assume judicial power on administrative matters. Thus, it may not be labeled unconstitutional if Ethiopia adopts the French type model provided that it is preferable in terms of relevancy and feasibility having regard to the specific situations of the country.
However, having regard to the existing situation in Ethiopia, that is the absence of full-fledged administrative court system like the French counter part, it seems justifiable to argue that regular courts must have the power to test the legality of administrative decisions in the same manner as courts in the common law tradition do. The power of the court to review administrative decisions, thus, may be derived from the very principle of separation of power that vests judicial power in the judiciary and the doctrine of rule of law enshrined under the FDRE Constitution by way of interpretation just like the practice in the United States, at least, for the purpose of reviewing administrative decisions and subordinate legislations. There are also possibilities where the parent acts that create the respective agencies may also empower courts to review administrative decisions under specified conditions. Thus, one may plausibly argue that implied in the principles of separation of state power and the rule of law that are duly recognized under the FDRE Constitution is that the judiciary as the ultimate arbiter of justice has the power to test the legality of administrative acts. In the absence of a systematically devised administrative reviewing mechanism like that of the French one, precluding the ordinary courts to review administrative acts on technical grounds renders the doctrine of rule of law meaningless. However, practically speaking, the status of judicial review in Ethiopia lacks clear-cut jurisprudential evidence.
Wherever courts have the power to review administrative actions or inactions that tantamount to decisions, the prerequisites that they are expected to observe are discussed subsequently.