01 February 2012 Written by  Aberham Yohannes and Desta G/michael

Judcial Review

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.

7.2. 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.

Last modified on Wednesday, 02 May 2012 13:05