The Legal Significance of Judicial Review - Research Paper Example

CRITICAL ANALYSIS OF JUDICIAL REVIEW Introduction According to Meszaras and Sunkin (1995) arguments, judicial review process is a very important aspect of public law and most importantly to the practical application of the common law in many countries of the world. The increasing significance of this process over is exhibited in increase in claims presented to administrative courts and prominence attached to the jurisdiction of judicial review across various issues.1 The public law project (2003) pointed out that since the enactment of the human rights Act 1998; judicial review has become the principle route for testing the compatibility of public action with convention rights.2 Judicial review According to judgment of Brennan J. in Attorney-General (NSW) V Quin, the attributes of judicial review comes out clearly when he said that the important warrant for judicial intervention in its ruling, as pointed out in (CLR, 1990) is the declaration and enforcing of the law that will eventually affect the extentended and exercise of power by other arms of the government. This is the core duty of the judiciary. It is the work and within the jurisdiction of the court to review administrative action and that they do not go beyond the confines of the law which determines the limits and governs the exercise of power by various arms of the government and the public at large and that none violates the supreme law. And in doing so, the court avoids administrative injustice or error by people in power and eventually protecting the public.3 Judicial reviews generally have gone through rapid and important developments. The points on which the judiciary intervenes in public cases have changed. There is increase in number of claims, there is also the opinion that judicial review has led to an unnecessary bureaucracy of its own. For example when the modern judicial reviews procedure was introduced in 1997, the intention was that it would be efficient and effective. The time durations were put in place to ensure that cases would be brought in good time. Claims were intended to be resolved in the fastest way possible and in a very efficient way. But still claims may take long at times and with people appealing against some ruling that they perceive did not go their way or was rather harsh, claims can take over a year to be settled. Delays are always not good for claimants that are forced to wait to get the relief which is there right as provided for in the constitution and also not healthy for public decision makers and others people who are victims of the legal challenge. Suggestions are also rife that it is also not conducive for economic development and growth, since it put major public projects in long and unpleasant conditions, expensive and uncertain legal battles.4 The United Kingdom (UK) proposal in relation to judicial review and most recently in its September 2013 constitutional paper, judicial review, proposal for future reforms, attracted controversy. After the first wave of procedural reforms earlier in 2013, the proposed future reform seeks to address the government’s main problem that judicial review is hindering the economy from recovering and growing, and that it is being used in most cases for campaigning or delaying tactic. Further the reform consultation paper seeks to address six areas which are planning charges, standing, that is, who should apply for judicial review, how should courts deal with minor procedural defects, and if it can be improved, judicial review in relation to solving dispute with regard to public sector equality, if the present plans for cost provide the right financial incentives, including legal assistance, and lastly and lastly what need to be done so that relevant cases can move fast to the supreme court.5 Judicial review has a unique attribute which sets it apart from other forms of defending claims. It is litigation against the government6 which can make the government’s unlawful actions being stopped or suppressed by the courts. Maybe its existence has been taken for granted, but its important elements stand out and it should not be individuals only7 who are capable of ensuring that the governing authority adopts decision on judicial review, however such power is exercised on the ground that the government stands by the outcome in its exercise of executive power.8 Judicial review thus defines the constitutional sphere that people of different parts of the world live in. Additionally, judicial review affects/ influence on the executive acts only according to the law. Without it, people might draw closer and closer to authoritarian or even dictatorial regimes of governments in different parts of the world. But with judicial review in place, people will live under the rule of law. While the rule of law may not be a unique phrase, it does not have a common definition, which has sparked a great academic debate from different scholars worldwide, judicial review can be categorized into two theories of common law as: formalist or ‘thin,’ which outlines that laws should comply with certain formal rules in order for it not to be vague, a oppressive regime that has no respect for its people and the rule of law perfectly fits this definition. Second, is substantive or ‘thick,’ this theory of the rule of law interprets the contents as well as the type of law, requiring important rights to be realised.9 Judicial review includes both procedural and real elements10 and thus it described best as the ‘thick’ understanding of the rule of law, having in mind that there is no common and established definition in the judiciary of the rule of law, there are sufficient evidence in the judicial statements to show that the rule of law does have a important and significant meaning for judiciary. It has been is invoked by judges many times over and over to clarify the scope of their judicial review jurisdiction,11 for example looking at the statements made by various Law Lords in their rulings, the try to explain and bring out the meaning of rule of law. Lord Bingham (2010) argued that, nonetheless an important aspect that must be in place in a democratic society is the rule of law, and that judicial review give effect to the rule of law. Because they make sure that administrative decisions will be done rationally and in accordance with a fair procedure and within the confines of powers bestowed by parliament.12 This statement is seen in Lord’s Bingham’s articulation of the necessary significance of the common law which is important to judicial review Cabinet secretaries or ministers and public officials always have to exercise power given to them without malice, in a very fair way, for the use of which the power were given and not going beyond the limits that is required of them in unreasonable manner to their subjects and the public in general.13 According to the arguments of Army Street (2005), it is clear that the striking feature arising here is whether there is any consensus with the society at large with regard to the meaning of the rule of law (for example in united kingdom ) with its relation with judicial review. It may be sound to suggest a most important consensus in the society that it is possible for the courts to examine the executive deeds on facts not simply of if the effect has a basis in the enshrined law, but also on facts such as reasoning, fairness, and compliance with the present basic human rights. Else the constitution might be in danger of turning into an authoritarian or even dictatorial regime (in spite of being seen by majority a democratic), since most government after being elected to office, tend to exercise executive power unreasonably, unfairly, and in total contrast to human rights and without any consideration to the constitution whatsoever as if it does not exist. Which we attempts to assess the society consensus in general, then our common understanding of the common law be a version of the ‘thick; definition.14 The judiciary understanding as to the meaning of the rule of law in relation to judicial examination, and due to the fact that it is within the jurisdiction of the judiciary to use any useful laws passed by legislature. If there are divergence opinions about the meaning of the common law, as it relevant to judicial examination, pitting the parliament on one side and judiciary on the other hand, then this may to disagreement between these two branches of the government. While the public opinion on how they understand the rule of law in relation to judicial review, since the three (executive, parliament, and judiciary ) may vehemently say to be doing so in public’s interest while processing (executive), making (legislature) and interpreting (judiciary) the law with regard to judicial review.15 Judicial review thus is the tool by which courts ensure that public authorities are accountable for their conduct. This is the main reason we can trust that ministers and other public institutions will do what is required of them, and act in according to the common law. It is the tool by which folks and business are protected from regulatory actions that is abusive, to the common law. It also makes sure that people who exercise public power are subjected to the law instead of considering or seeing themselves to be law. It should be noted that an effectively and efficient structure of judicial review is core to the rule of law. Judicial review has to accept the constitutional importance of judicial examination for the rule of law. To sum it up, judicial review is the exercise of the courts’ constitutional us to ensure, as much as they can, that people in authority and public institutions adhere to the rule of law. The words of judicial review give meaning to the rule of law,16 since the common law stipulates that those carrying out public powers should be in accordance to the law. Common law stipulates that the laws constituted by legislature, plus the principles of the rule of law that exist with these laws, are applied by the judiciary which ought to be free from the influence of the legislature and the cabinet.17 The work of the independent judges free from the influence of either cabinet or the parliament entitled to interpret or giving meaning and apply the law is recognised all over the world as a cordial characteristic of the new democratic governments which is the core of the rule of law. Legislature admits that rule of law has to be observed as enshrined in the constitution.”18 To courts, there is no order more necessary in the constitution than the safeguarding of the rule of law and the constitutional protection that must be offered by judicial examination.19 Courts always admit the public interest in bringing judicial screening and means to gag public bodies from going contrary to the rule of law. in situations where government defends itself in courts for judicial review to be limited on public policy facts, the courts’ answer is to substantiate the justifiable with respect to the rules of law, so that, the nature of judicial review to be more proportionate and important to safeguard the law. Should the government request for procedural limitation to be more narrowly delineated, the courts’ judgment is made aware of the significance of vindicating the rule of law. And when public authorities says that judicial examination gagged since the outcome would be the same, then the analysis should be based on recognition that; the courts should be astute to do its constitutional mandate as custodian of the rule of law.20 Grounds of review People normally say that the facts of judicial examination ‘defy precise definition,’21 since most of it is concerned either with the way by which judgment was made or the nature of the power of the decision maker. As noted, results or outcomes of decision making process are not primarily concern of judicial review. Although the common law grounds are seen in most parts of the review (Australian constitution, 1973) as outlined in sections of the AD (JR) Act,22 Aronson (2000) argued that some differences appear. For example, under the AD (JR) Act, the rule of law distinction between faults of law and off the record has been quashed. There is also the ‘catch all’ ground of ‘otherwise contrary to law’23 and ‘no proven’ fact which is contrary for considering if a decision maker did wrongfully included or excluded proofs or included vague evidence.24 Limits on the scope of judicial review The nature of our constitution (for example that of Australia) system is in a way that judicial review of executive decision making is always something that is bond to generate a lot of heated debate both to the courts and government . There are a number of significant areas of government decision making where efforts have been put in place to restrict the nature of judicial review (Lord Reed, 2012).25 Judicial review limits Areas where the courts have proved its unwillingness to arbitrate include actions of high government or political nature, including the signing of treaties, the existence of war, among others and even the recognition of foreign government. Legislative limits According to the AD (JR) Act of Australia, the exception to judicial examination set outlined in the AD (JR) Act26 points out to the largest single constitutional exemption of judicial review. Which happened to be the topic under scrutiny in a number of council publications (Australia), most importantly, the council’s first report, which was the administrative decisions (judicial review) Act 1997, exclusion under section 19-1978. Private clauses Arguably, a private clause stipulates that a judgment should not be challenged, appealed against, rejected or questioned, or to be prvented, or injucted in any court or on any ground whatever.27 According to the judgment of Callin J (2003) a private clause can also be considered as a clause whose time limit has elapsed and hence there cannot be a judicial review.28 This clause would appear to be unconstitutional as it seeks to deny the high court of its constitutional mandate to ensure that actions of the commonwealth officers are within the confines of the law. legislature constitute laws within their jurisdiction which must be conformed to, and outline the duty, or the privileges, or the jurisdiction, and accounts for the content of the law to be followed and respected by all,29 even though the high court cannot be deprived its legal mandate to ensure that constituted laws are respected by all regardless of the post one holds. Significance of the rule of law An element of the rule of law Apart from clearly explaining the constitution limits of judicial review, the constitution provides the significance of judicial examination; the constitution rates the importance of judicial review as a core of the common law. “Judicial examination is neither more nor less than the enforcement of the rule of law over executive act, it is a way by which executive action is checked so as not to exceed the powers and tasks given to them by the law and that the interest of individuals and the public at large is protected accordingly,30 so as not to impose injustices to the masses. An aid to accountability Judicial review beyond any reasonable doubt helps in accountability, assuming the role of courts in judging what the law entails and its application, the most important benefit that is brought as a result of judicial review is the fact that it compels case in the administrators and reviews in their intervening processes.31 Mary Crock (1999) pointed out that one of the benefit of judicial review as a measure of accountability, is the fact that it holds people responsible of their actions and most so the decision makers. Due to the fact that a decision maker knows that he/she is being checked by another oversight authority, he/she will give the best and fair ruling to avoid him/her being scrutinized by the necessary body. The judiciary often offers security to those who make a bon fide attempt to investigate on the facts and the law as enshrined in the constitution for those who choose to act contrary to the law.32 Consistency and precedent Another benefit of jurisdiction review in administrative set up is that they do not establish precedent. According to the submissions Law Council of Australia (1998) one of their findings was that each case was to be reviewed on its own merits and demerits. In contrast, although the decision to litigate can be quite challenging, the decision by the judges are normally precedential and therefore they can offer direction on significant issues pertaining to administrative law, especially obligations imposed upon decision makers by particular statutes. And as noted by the law council of Australia (1998) in context of its submissions on the migration (judicial review) Bill 1998 that the refugee tribunal deals with complex legal issues the courts provide meaning of legislative requirement and on how the old and new laws are related so that both the Refugee Review tribunal and immigration review tribunal, may make their own submissions on how they interpret the relevant legislation. Normally all court decisions are normal and are respected by all tribunal members. The fostering of consistency between members and the knowledge of the correct interpretation of a certain sections of the law are beneficial to everyone involved in the immigration process, right from the applicants, up to the reviewing officers.33 An individual right Sir. Anthony (1994) argued that the government is the origin of most benefits, and an individual’s right to examine decisions in respect to the administrative of those benefits is of equal significant as the entitlement to present an action in the courts of law to instill the right of a fellow citizen.34 Lord Bingham (2010) further stated that such a right is not adequately protected by the doctrine of ministerial responsibility. In summery judicial review plays an important role, in an esteemed public way, of working, compelling, and ensuring standards necessary to the common law expressed in delivering of administrative justice and also addressing the origins from those standards from an individual case perspective.35 Potential wider constitutional consequences As noted above, the passing of any new legislative limiting judicial review is likely to cause debate about the common law. Such a debate may further raise queries about the government conduct with the rule of law. These questions may go beyond judicial examination. A good example would if the United Kingdom contradicts the rule of law by not obliging with international law requirements (with regard to prisoners voting). The view36 lord Bingham (2010) in his submissions stated that the rule of law demands that a state is bond to respect international obligations. Parliamentary sovereignty What have been analyzed in the previous section demonstrates that it may not be fan to think that legislation restricting judicial examination could be the main issue for cases which the constitutional position in respect to the ongoing importance of parliamentary sovereignty future to be in doubt. Situation like this will inevitably involve, the courts, powerful methods of legal interpretation which they might have used previously for them not enforce the clear will of parliament, so as to uphold and stand with the rule of law, second to that, an outright ruling that they will not use a particular legal provision. If the law courts are given reason, in so as not to use legislation by either of the above means, then they may be more prepared and ready to do so in other areas outside the field of proposed limitation to judicial examination.37 Thus from this view there is need for both the court and parliament to work in harmony and in good understanding of each other to avoid antagonizing the each other either by way of enacting laws (parliament) to suit their own interest or by a way of interpretation of the law (judiciary) to suit their own interest or in a retaliatory way. But rather the rule of law must be upheld and regarded by all stakeholders regardless of position one is holding. Codified constitution The belief and idea that primary legislation cannot, function in line with traditional model of parliamentary sovereignty, be questioned on important constitutional principles such as human rights, is seen to be an attractive if legislature has shown its willingness to legislate in contradiction of the laid principles of the constitution. And if the judiciary too shows itself willingness to destroy legislature so as to uphold the constitution mandate and the rule of law. This could lead to a situation in which the government and parliament will actually favor, since it may be both politically and constitutionally more acceptable to restrict by the judiciary that is acting on grounds of codified constitutional principles, rather than to be restricted by a judiciary exercising open frees power.38 Conclusion McMillan (1996) argued that proposal to limit judicial review can potentially change the balance of power bestowed on the constitution. Such a proposal can change the manner in which power is shared between the different governing authorities. The outcome can be a constitutional crisis with unprecedented effects. It can lead to a state of authoritarian or dictatorial of the government since they will do what pleases them to do with no regards whatsoever to the rule of law since judicial review would have been restricted to certain degree thus the judiciary cannot exercise their duties freely. Both government and parliament on one hand and the judiciary could potentially be involved in a conflict on how to safeguard public interest with regards to judicial review. Consequently, restraints from at least over the other may be requested in order to avert a crisis. Read More