Eleanor Finch
Judicial review is a process that allows a country's judiciary to examine the actions of the executive, legislative, and administrative arms of the government to determine whether they are consistent with the constitution. While the United States employs a mixed system, with various courts reviewing administrative decisions, many countries adopted judicial review after World War II due to the influence of American constitutional ideas. This includes the establishment of special constitutional courts in Germany, Italy, and South Korea, as well as the adoption of the Kelsen-style constitutional court in Austria and Germany. In contrast, some countries like the United Kingdom and the Netherlands have no system of constitutional review. Finland, on the other hand, has an ex ante non-judicial constitutional review, which takes place before laws enter into force, and its courts rarely question the interpretations of the Constitutional Law Committee (CLC).
| Characteristics | Values |
|---|---|
| Countries that use non-judicial abstract constitutional review | Denmark, Sweden, Finland, Ireland, Greece, the Netherlands, and the United Kingdom |
| Countries that use judicial review | The United States, Canada, Australia, Russia, France, Germany, New Zealand, South Africa, India, Japan, Pakistan, South Korea, Austria, Czechoslovakia, Spain, the Czech Republic, Slovenia, Slovakia, Italy, Liechtenstein, Poland, Yugoslavia, and Greece |
| Countries that use a mixed model of judicial review | The United States, Russia, Greece |
| Countries that do not permit a review of the validity of primary legislation | The United Kingdom, the Netherlands |
| Countries that have no system of constitutional review | The Netherlands, the United Kingdom |
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What You'll Learn
The Austrian System
The abstract review aspect means that the Austrian Constitutional Court can exercise judicial review without any connection to a real-life case or controversy. It rules on the constitutionality of a law in general terms rather than in the context of a specific legal dispute. This is in contrast to the American model, which requires a claimant in court with a case dependent on resolving a constitutional issue.
The Austrian Constitutional Court, which celebrated its 100th anniversary in 2020, has been a model for many institutional features of today's constitutional courts. It ensures pluralism on the bench by setting specific eligibility criteria, opening judgeship to a diverse range of candidates beyond the traditional judicial sphere.
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Constitutional defence
The concept of judicial review has evolved significantly since its inception, with the term now broadly referring to the adjudication of the constitutionality of statutes and the actions of administrative agencies. This process serves as a check and balance in the separation of powers, allowing the judiciary to supervise and invalidate incompatible or unlawful actions by the legislative and executive branches.
In the context of "which of our model countries uses non-judicial abstract constitutional review," it is important to understand the distinction between judicial and non-judicial review. Judicial review typically involves the power of courts to examine and invalidate government actions that are deemed inconsistent with the constitution. This process can vary between countries and even within different levels of courts within a country. For example, in the United States, all courts can entertain claims of unconstitutionality, while countries like France, Germany, New Zealand, and South Africa have designated specialised constitutional courts to handle such claims.
Non-judicial review, on the other hand, refers to mechanisms other than the courts that are used to review the constitutionality of laws or government actions. This can include institutions such as constitutional councils or specialised tribunals that operate outside the regular judiciary. One example of a non-judicial review system is the "Austrian System," established by Hans Kelsen in 1920. This system was adopted by Czechoslovakia, Austria, and several other countries. In this model, a specialised Constitutional Court has the exclusive competence to question the constitutionality of primary legislation, while other courts may initiate the review process.
Another form of non-judicial review is the mixed model, where multiple institutions or levels of courts are involved in the review process. For instance, Russia and the United States employ mixed models, with Russia allowing courts at all levels to review primary legislation, and the US utilising a combination of district courts, courts of appeals, and specialised tribunals.
It is worth noting that the absence of a mention of judicial review in a country's constitution does not necessarily imply the absence of such a practice. For example, while the United States Constitution does not explicitly mention judicial review, the US judiciary has been described as having unusually strong powers in this regard.
In summary, the model countries that utilise non-judicial abstract constitutional review tend to favour specialised institutions or a mix of different bodies to review the constitutionality of laws and government actions, rather than relying solely on the traditional court system. These approaches aim to provide a "constitutional defence" by safeguarding against unconstitutional legislative actions and ensuring a balance of powers.
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Judicial review in Canada and Australia
Canada's judicial review system has its roots in the English common law system, with two sources of judicial review: the prerogative writs of certiorari and mandamus, and actions for damages. The Judicial Committee Act 1833 and the Judicial Committee Act 1844 empowered the Judicial Committee of the Privy Council to conduct judicial reviews of statutes passed in the colonies to ensure compliance with British law.
Today, Canada has two types of judicial review: judicial review of administrative acts and judicial review of the constitutionality of legislation. Both are based on the rule of law, which holds that government officials, as well as citizens, are subject to the law. The courts can nullify any actions taken by these officials if they are deemed unlawful.
The Federal Court of Canada, split into the Federal Court of Appeal and the Federal Court in 2003, has jurisdiction over judicial reviews regarding federal administrative tribunals and other matters of federal jurisdiction. The courts may decline to hear an application for judicial review, and the issue being appealed must be public in nature for the review to proceed.
In addition to the federal courts, Canada's superior provincial courts also have the jurisdiction to review the constitutionality of any enactment, as outlined in Section 96 of the Constitution Act, 1867.
Canada's judicial review process has been subject to criticism, particularly regarding the legitimacy of constitutional review. As the language of the Charter of Rights and Freedoms contains abstract concepts, critics argue that courts impose their subjective interpretation, and since judges are not democratically elected, their views may lack legitimacy.
In Australia, judicial review is a mechanism to ensure the accountability of the government. It involves a court reviewing the lawfulness of a decision made by the Australian Government or a government department. A person seeking judicial review must sue the government in the High Court of Australia or the Federal Court of Australia. The court will decide if the government decision was legal, if it was made fairly and without bias, and if the government had the power to make the decision. If the court finds the decision unlawful, it will be overturned, and the government will be required to remake the decision in accordance with the law.
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US constitutional ideas
The US constitutional system has been influential in shaping the constitutional ideas and practices of other countries. This is particularly true when it comes to the concept of constitutional review, also known as judicial review. Judicial review refers to the power of courts to examine and invalidate actions of the legislative, executive, and administrative branches of government if they are found to be incompatible with a higher authority, such as the constitution.
The US judiciary has been described as having unusually strong powers of judicial review in a global context. In the US, federal and state courts at all levels are able to review and declare the constitutionality of laws and government actions. This system is known as the "American model" and has been adopted, in part, by some European countries, including Denmark, Sweden, and Finland.
The US model of judicial review is characterised by its decentralised nature, with multiple levels of courts empowered to conduct judicial review. This is in contrast to the centralised model, which involves a special tribunal outside the regular judiciary, such as a constitutional court, that is specifically tasked with conducting constitutional review. The US system also allows for judicial review in concrete cases or controversies, meaning that only laws that are in effect or actions that have already occurred can be found to be unconstitutional.
Following World War II, many countries felt pressured to adopt judicial review, influenced by US constitutional ideas. This included the idea that a system of checks and balances, with an independent judiciary, is essential for democratic governance. The US constitutional system, with its strong judicial review powers, served as a model for countries seeking to establish or strengthen their democratic institutions.
However, it is important to note that the US constitutional system also has its critics. Some argue that the strong judicial review powers can lead to a form of "judicial oligarchy," where a few judges can override the will of the majority and impose their own political leanings. Additionally, the US system allows for non-judicial interpretations of the Constitution, where political branches and ordinary citizens play a role in interpreting and enforcing constitutional norms. This further complicates the dynamic between the judiciary and other branches of government.
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Constitutional hierarchy
The concept of constitutional hierarchy is closely tied to the process of judicial review, which involves the examination and scrutiny of governmental actions by the judiciary to ensure their alignment with the constitution. This mechanism acts as a check and balance on the power of elected officials. While the term "judicial review" is commonly associated with the assessment of legislative actions, it also encompasses the review of executive and administrative decisions.
Judicial review plays a pivotal role in safeguarding constitutional supremacy and protecting the rights of individuals. Through this process, courts can invalidate laws, acts, or governmental actions deemed incompatible with the constitution or higher authority. This power of judicial review is not uniformly distributed across different countries, giving rise to varying models of constitutional review.
In the context of "which of our model countries uses non-judicial abstract constitutional review," it is essential to understand the distinction between judicial and non-judicial review. Judicial review involves the direct involvement of the judiciary in evaluating the constitutionality of governmental actions. On the other hand, non-judicial review entails other mechanisms or entities reviewing governmental actions without the direct participation of the judiciary.
Among the countries mentioned in the context of constitutional review, the United Kingdom and the Netherlands are notable exceptions that do not employ a system of judicial review for assessing the constitutionality of primary legislation. In the United Kingdom, Acts of Parliament are exempt from judicial scrutiny due to the principle of parliamentary sovereignty. Similarly, the Netherlands expressly forbids its courts from evaluating the constitutionality of primary legislation passed by the Dutch legislature.
In contrast, countries like Austria, Germany, Spain, the Czech Republic, and others have adopted a centralised model of constitutional review, often featuring specialised constitutional courts. This model, developed by scholar H. Kelsen, establishes a tribunal outside the regular judiciary to provide a "constitutional defence" against unconstitutional legislative actions. This centralised approach to constitutional review is prevalent in Europe, particularly among member states of the European Union.
The United States, Canada, and Australia share a common approach rooted in their inheritance of the English common law system. In the United States, all courts, including federal and state courts, can review and assess the constitutionality of laws. This power extends to ensuring that statutes do not infringe on individuals' constitutional rights. Canada and Australia's judicial review predates their establishment as independent countries, stemming from the British Colonial Laws Validity Act 1865, which ensured that colonial laws aligned with British laws.
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Frequently asked questions
Czechoslovakia.
Austria.
Finland.
Finland.
