Judicial Review.

 

Judicial Review

Judicial review is a crucial power of the judiciary that allows courts to examine the actions of the legislative, executive, and administrative branches of government to determine if those actions are lawful and consistent with a higher authority, most often the country's constitution.

Here's a breakdown of what that means:

·         Review of Government Actions: It's a process where judges review decisions or actions made by public bodies. This includes:

o    Laws passed by the legislature: Courts can decide if a law enacted by Parliament (or Congress in other systems) violates the constitution.

o    Actions of the executive branch: This involves decisions made by the government, ministers, or administrative agencies.

o    Administrative decisions: Decisions made by various public authorities (e.g., local councils, regulatory bodies, health authorities).

·         Lawfulness and Constitutionality: The core question in judicial review is whether the government action was lawful. This means:

o    Did the public body have the legal authority (power) to make that decision or take that action?

o    Did they follow the correct procedures and due process?

o    Was the decision reasonable, or was it "irrational" (so unreasonable that no reasonable public authority would have made it)?

o    Does the action comply with the country's constitution, especially regarding fundamental rights and freedoms?

·         Not a "Right or Wrong" Decision Review: It's important to note that judicial review is generally not about whether the original decision itself was "right" or "wrong" in the policy sense. Instead, it focuses on the process by which the decision was made and whether it adhered to the law. The court won't usually substitute its own decision for that of the public body. If a decision is found unlawful, it's often "quashed" or "nullified," meaning the public body may have to make the decision again, but this time following the law.

·         Checks and Balances: Judicial review is a fundamental component of the "checks and balances" system in democratic governments. It ensures that no single branch of government becomes too powerful and that all branches operate within the limits defined by the constitution and the law.

·         Supremacy of Law/Constitution: The power of judicial review reinforces the principle that the constitution (where one exists) is the supreme law of the land. Any law or action that contradicts the constitution is declared unconstitutional and therefore void.

·         Protection of Rights: A vital function of judicial review is to protect the fundamental rights and liberties of citizens against potential overreach or abuse of power by the government.

Origin and Examples:

·         The concept of judicial review gained prominence with the landmark U.S. Supreme Court case of Marbury v. Madison (1803), which established the principle of judicial review in the United States.

·         In Bangladesh, while the term "judicial review" isn't explicitly used in the Constitution, Article 102 grants the High Court Division the power to issue various orders (writs) to review the actions of public authorities and enforce fundamental rights. This has led to significant judicial activism in the country, including cases where constitutional amendments and executive actions have been challenged and, at times, declared illegal.

In essence, judicial review serves as a critical safeguard to uphold the rule of law, protect constitutional principles, and ensure government accountability in a democratic system.

Key aspects and principles of the Rule of Law include:

·         Supremacy of Law: The law is supreme, and everyone, including the government, must obey it.

·         Equality Before the Law: All individuals are treated equally under the law, and the law applies to everyone in the same way.

·         Legal Certainty: Laws must be clear, precise, predictable, and stable, allowing people to understand their rights and obligations and the consequences of their actions.

·         Accountability: Government officials and institutions are accountable for their actions under the law.

·         Separation of Powers: The powers of government (legislative, executive, and judicial) are separated to provide checks and balances and prevent the concentration of power in one entity.

·         Access to Justice: Everyone should have fair and timely access to legal remedies and an independent judicial system to resolve disputes and challenge injustices.

·         Protection of Human Rights: The law must safeguard fundamental human rights and freedoms.

The concept of the Rule of Law has ancient roots, with ideas appearing in ancient Greek and Roman thought, and notably reinforced by documents like the Magna Carta in 1215, which began to establish the idea that even monarchs were subject to the law. It is considered a cornerstone of democratic societies and is vital for maintaining a just, orderly, and stable society where individual rights are protected.