Judicial review of executive and legislative actions

In the context of the present political situation many ideas and opinions are circulating in the media (including the social media) comparing the prevailing situation here to similar situation in other countries. In democracies resolution of political crisis is harder to come by sooner, as it demands consensus of all stakeholders, which are equally harder to come by.

At the same time two judicial inquiries are also in progress in the country’s Supreme Court and the appeal court. This opportunity of seeking “Judicial Review” of executive action is presented to the citizens due to the manner in which the government is organised in our democracy. The Legislative supremacy and separation of powers are two distinct theories of democracy.

Our constitution; the supreme law of the country, provides for the exercise of the Sovereignty of the People independently and separately by the legislature, executive and the judiciary. It says, The Sovereignty of the People shall be exercised and enjoyed in the following manner:

(a) The legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;

(b) The executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;

(c) The judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;

This separation of power is all about how a democratic society should be organized. “Judicial review” needs to be considered in the context of these two distinct theories of Legislative supremacy and separation of powers. The government should be organized with respect to the principles and doctrines of legislative supremacy and the separation of powers. The doctrine, the procedure and scope of judicial review may differ between countries.

The separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without due process of law. Each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. Checks and balances in judicial review are considered a key check on the powers of the other two branches of government by the judiciary.

“Judicial review” is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws and governmental actions that are incompatible with the constitution. An executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of the constitution. “Judicial review” is one of the checks and balances in the separation of powers; the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.

Differences in organizing "democratic" societies led to different views regarding judicial review. The societies stressing on separation of power are mostly utilize “judicial review.” Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have learned the possible dangers and limitations of entrusting power exclusively to one branch of government have adopted a form of judicial review to stem the tyranny of the majority.

In addition to “Judicial review” of executive and legislative actions, our constitution provides for the judicial review of the constitutionality of primary legislation. In this regard the exclusive jurisdiction is given to the Supreme Court. The doctrine, the procedure and scope of judicial review may differ between countries. Some countries do not permit a “Judicial review” of the validity of primary legislation.

In the United Kingdom; the country still has a strong attachment to the idea of legislative supremacy, the judges do not have the power to strike down primary legislation. Consequently, In the United Kingdom, statutes cannot be set aside under the doctrine of Parliamentary Sovereignty. Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.  

In the United States; in American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. The Federal and State courts at all levels are able to review and declare them, “constitutionality” or agreement with the Constitution of legislation by a process of judicial interpretation that is relevant to any case properly within their jurisdiction.

Also, a number of other countries have systems of judicial review by special Constitutional Courts. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court.

In the process of judicial review, an independent judiciary is of paramount importance, because it is the final adjudicator of the contested issues in the society. In a democratic society, it is an institution whose mandate is to protect the rule of law. It was the judicial independence always comes to the public’s attention, whenever the citizens are faced with doubt. Independent judiciary is the most precious jewel in the democratic crown.

An Independent judiciary always works against the forces of both political power and public opinion. No one is guaranteed a desired outcome – only a fair verdict. There are always two opinions going on in the public domain.  The Constitution – the country’s ultimate law is based on perhaps the biggest mutual accommodation of all, against the needs of society to govern it. They should be taken seriously in spite of personal frustrations.

The deliberate attempts to undermine public confidence in the Court’s integrity; the unforgivable sacrificing of the Court’s reputation on the altar of partisanship; the hyperbolic rhetoric of hate that greets unpopular decisions; the menacing volley of simplistic derogatory labels, that too often demeaning of justice instead of recognizing that justice is essential to the health of the whole political spectrum. All this is corrosive not only of the judiciary’s independence, but of democracy.

RAJA  WICKRAMASINGHE