JUDICIAL REVIEW
Constitutional Law of Bangladesh-II (LAW 215)
JUDICIAL REVIEW
The concept of Judicial Review originated in the United States. But there is no mention of this concept in the US Constitution. It originated in an US Supreme Court case Marbury v. Madison (1803).
DEFINITION
What is Judicial Review?
According to M. Jashim Ali Chowdhury, “Judicial review is the power of the Court to hold illegal and hence unenforceable any action by an executive, judicial or quasi judicial authority and to enforce the performance of their statutory duty.”
DEFINITION 2
Judicial Review is the power of the court to check the constitutionality of any Act of the Parliament or any action of a statutory body.
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MARBUY V MADISON (1803)
Facts of the case
Thomas Jefferson defeated John Adams in the 1800 presidential election.
Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they would not be valid until their commissions were delivered by the Secretary of State.
William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions.
MARBUY V MADISON (1803)
Issues
1. Do the plaintiffs have a right to receive their commissions?
2. Can they sue for their commissions in court?
3. Does the Supreme Court have the authority to order the delivery of their commissions?
MARBUY V MADISON (1803)
Decision
The Court found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury’s commission via writ of mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established.
Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws.
In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.
JUDICIAL REVIEW IN INDIA
In South Asia, India is the first country to incorporate the concept of Judicial Review in its constitution.
Before the independence i.e. during the British rule under the
Government of India Act, 1935, there was no such thing as Judicial Review.
Even in the UK, there is no such thing as Judicial Review. Why?
Because it practices parliamentary sovereignty/supremacy.
PRINCIPLES TO BE FOLLOWED IN JUDICIAL REVIEW
The following principles must be followed in judicial review:
1. Presumption of constitutionality
2. Between two possible interpretations, the one which declares constitutionality is to be preferred.
3. The court gives its opinion in concrete cases and does not answer academic questions.
Grounds for Judicial Review
Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 states three grounds such as illegality (unconstitutionality), irrationality and procedural impropriety.
DOCTRINE OF ULTRA VIRES
Ultra vires means ‘beyond power’.
Once the doctrine was used only in corporate cases. Later it was used in administrative law. Now we see the use in constitutional law as well.
JUDICIAL REVIEW IN BANGLADESH
Under a written Constitution like that of Bangladesh the doctrine of judicial review can be explained from different perspectives it attaches, particularly both from the view point of constitutional law and of administrative law.
Firstly, the strict or substantive meaning judicial review has been ensured in Articles 7, 26 and 102(2) of the Constitution of Bangladesh. Article 7 declares the core of constitutional supremacy.
It says -"This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void."
Though the provisions of Article 7 gives an umbrella coverage of constitutional supremacy to the whole Constitution, Article 26 gives a double sanctity on the provision of fundamental rights.
It says-"26. (1) All existing law inconsistent with the provisions of this part Fundamental Right shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
(2) The state shall not make any law inconsistent with any provisions of this part, and any law so made, shall, to the extent of such inconsistency, be void.
"Articles 7 and 26, therefore, give the substantive law of judicial review and Article 102(2) gives the implementing law of id for it provides for the procedure- how a law which is inconsistent with the provisions of the Constitution can be declared unconstitutional by issuing prohibition, mandamus, and certiorari.
Secondly, for the enforcement of fundamental rights specific provisions have been inserted in the Constitution. Part III of the constitution provides for 18 fundamental rights and under Article 102(1) the High Court Division of the Supreme Court can issue direction and orders for enforcement of these rights) It is pertinent to mention here that in Britain there is nothing as fundamental right because it has no written constitution. All rights are ordinary rights which are protected under statutory law and common law; not by any constitutional guarantee like Bangladesh.
Thirdly, administrative actions may be reviewed under constitutional provisions. Because under Article 102(2) of the Constitution the Supreme Court can examine the validity of actions performed by any public officials or bodies.
Fourthly, a large number of administrative actions are reviewed under statutory law. Because constitutional review of administrative actions under Article 102(2) is possible only when “no other equally efficacious remedy is provided by law (Statutory law)”.
Under various Acts of parliament higher courts i.e. the Supreme Court as well as lower courts and tribunals have power to review the administrative actions.
Fifthly, like in Britain judicial review of delegated law is possible in Bangladesh. It is a general rule that a delegated law must not be inconsistent with its parent laws If any delegated law is proved to be inconsistent with the parent Act, the court can declare that delegated law illegal and ineffective.
EXERCISE
Suppose, an Act named the Government Employees Act, 2020 states that women employees shall get 70% salary of their male counterparts and the Buddhists shall get 80% of their muslim counterparts.
Is the Act constitutional?
