Meaning of Judicial review:
1. in the sense of constitutional supremacy:
The concept of judicial review are first comes from U.S.A. and the case was Marbury VS. Madison. The US Constitution does not say that it the supreme law of land and not does this constitution confers on the Supreme Court power to declare a law ultra vires.
(1) Primary and strict view:
Judicial review of law made by the legislature, the judiciary has to power to examine the constitutionally of laws made by the legislative.
(2) Broader and liberal view:
(1) Judicial review of made by the legislature,
(2) Judicial enforcement of fundamental right.
(3) The judicial reviews of administrative action are goes under the provisions of constitution.
(4) Judicial review of administrative action under the provision of statutory law.
(5) Judicial review also delegated legislation.
2. Judicial Review in the sense of parliamentary supremacy:
(1) Judicial review of administrative actions under provision of statutory laws.
(2) Judicial review of delegated legislation.
Definition of Judicial review:
Judicial Review is a type of court proceeding in which a judge reviews the lawfulness of a decision or an action made by a public body based on consistency with the Constitution. It includes that jurisdiction of the court by which it can declare a law made by the legislative inconsistent with the Constitution or with the provisions of fundamental rights and therefore unconstitutional & void. The procedure and scope of Judicial Review differs from country to country and State to State, still its aim remains the same that is to protect the sanctity of the Constitution of the land.
The inherent power of the court to exercise judicial review:
The legal instrument of a written constitution is judicial review of laws. The expression judicial review has different meaning in different branches of law & is used also in the ordinary law in countries having no written constitution.
1. Doctrine of Judicial review to declare a law unconstitutional:
In constitutional law it has got a definite significance in countries having a written constitution which is treated as a legal instrument, the review by a competent court, of the validity of a law passed by the legislature on the ground imposed by the written constitution and the power of such court to declare the law to be unconstitutional & invalid.
2. Guardianship of the Constitution belongs to the Courts:
It is clear that a written constitution is intended to operate as a limitation upon the powers of various organs of a state. The Machinery to enforce the limitations of power, under those constitutions where judicial review exists, this guardianship of the constitution belongs to the court.
3. Major propositions in the Marbury v. Madison case decision:
The case resulted that the American constitution was a legal instrument to declare some laws to be unconstitutional. Also set forth major propositions, such as;
a. That it was enforceable in the Courts, like any other law.
b. That it was capable of being interpreted by the courts like any other legal instrument.
c. That the constitution constitutes the higher law, i.e. a law superior to the law made by the legislature.
d. That the constitution was the source of all governmental power and limited the powers of all the organs of the state.
e. That in case of conflict between the higher law and the ordinary law, the former shall prevail and a law repugnant to the constitution must be void.
f. That it is for the courts to determine whether an ordinary law has contravened the higher law, and in case of such contravention it would be the duty of the courts to invalidate it as constitutional.
g. Being the fundamental law, it cannot be changed by the legislature by its legislative process.
The decision increased the Court’s power by encouraging the judicial department to say what the law actually is. So from this, a court may now declare an Act of the Congress/Parliament void if it found prove that the Act was inconsistent with the Constitution.
4. the term, “Judicial Review” included impliedly within the Constitution:
The typical example of such Constitution is the Constitution of the People’s Republic of Bangladesh. Article 7(2), 26, 44(1) & 102 of the Bangladesh Constitution indirectly support the Judicial Review system. A recent example of the exercise of this review power would be the High Court’s decision to scrap the 16th amendment of the Constitution that empowered the Parliament [by articles 96(2) & 96(3)] to impeach Supreme Court judges for incapacity or misconduct. The Court declared the amendment illegal & unconstitutional and against the principle of separation of powers & the independence of the judiciary.
5. An introduction to judicial review in Bangladesh:
Article 26 and 44 denotes that laws inconsistent with fundamental rights will be void. However, this does not apply to any amendment of the Constitution made under article 142. While judicial review power is vested in the High Court Division under article 102(1) which is one of the basic structures of the constitution and it cannot be taken away. Whereas judicial review power under article 102(2) is not fundamental or guaranteed, it is only available if no other equally efficacious remedy is available.
6. Bar to Judicial review in Bangladesh:
Again, there exists article 47 according to which no law shall be deemed to be void on the ground of inconsistency with the Constitution if Parliament expressly declares that such provisions have been made to give effect to any of the fundamental principles of state policy. This article is a clear contradiction to the above articles.
7/ Constitution is built around six basic principles:
The Constitution is built around six basic principles: popular sovereignty, limited government, separation of powers, checks and balances, judicial review and federalism. In popular sovereignty, all political power resides in the people. They are the only source for any and all governmental power.
8. Popular case study Case study in Bangladesh;
A. Farzand Ali vs. West Pakistan; 22 DLR (1970) 203.
The power of judicial review of superior courts is a matter of constitutional conformant in our country and it cannot be taken away or abridged by ordinary legislation.
B. Anwar Hossain Chowdhury vs. the State; 1989 BLD
Judicial Review is a basic feature of the Constitution and as such cannot be taken away of control over by government of the constitution.”[8th amendment case]
Judicial review is not the only means of constraining the ruling authorities in a democratic government, and it is almost certainly not the most effective means. Elections, the defining feature of modern democracy, probably deserve that title, and mixed government, with its associated checks and balances, probably ranks next.
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Department of Law
Daffodil International University