February 20, 2021

Judicial Review

Marbury vs Madison

Judicial Review is the Power given to the courts by the American constitution. Which enables the courts to declare an act of congress or legislature unconstitutional. But courts cannot revoke or order to do something which is against the state law or constitution. American constitution does not explicitly defines it. But it is implied from the article 6 and the section 2 of article 3.

Meaning of Judicial Review :

judicial review means you can challenge the decisions and the acts of govt in the court. which are unconstitutional or against the law according to you.

Definition:

  • According to Webster’s Dictionary of Law :
    A Judicial re-examination and reconsideration of the legality or constitutionality of something as the proceedings of a lower court or a tribunal or a legislative enactment or government or administrative action.
  • According To Dimock and Dimock
    Judicial review is the examination by the courts in cases actually before them , of legislative statutes and executive and administrative act to determine weather or not they are prohibited by a written constitution or are in excess of powers granted by it.

Relevant Provisions :

Article 3 of Section 2 says “The judicial powers shall extend to all cases, in law and equity, arising under this constitution”

According to Article 6 : “This constitution and the law of United States which will be made in pursuance thereof, and all the treaties made and which shall be made under the authority of United States, shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any states to the contrary not withstanding.”

Essentials of Judicial Review:

Below are the Ingredients for a judicial review :

  1. There must be dispute between two parties.
  2. The decision turns on the Provision of a specific Statute
  3. The Provision of a statute are against the Law of the land

Illustration:

In 1952 Supreme court nullified the decision of congress to authorize the federal govt, to take over the control of steel mills with a view to deal with a serious strike.

Scope of Judicial Review:

  • Judicial Review Applies to the federal and the state laws
  • It also applies to the congress and the legislative bodies of all the states in USA.
  • Judicial review applies to all the treaties made under the authority of USA.
  • It applies to the constitution of USA.
  • Judicial Review also applies to the federal and the state executive authorities

Advantages of Judicial Review:

Judicial Review has many advantages, like it creates an extra checks and balances on the executive and legislative bodies of the states. It keeps the president and the congress in its limits. It strengthens the federation of USA. it defends the rights of an individual.

Importance of Judicial Review:

Judicial Review is so much important that by using this you can even challenge the decision of the president of the USA. Who is considered the strongest person in the world in current time. Hence it prohibits the govt officers and the politicians to make harmful laws of their own wish.

Criticism and Disadvantage :

As Judicial review have so many advantages and importance, however some lawmakers still Criticized it . Because, According to them it gives excessive powers to the judges. And following are some points on which they criticize judicial review.

  1. Supreme courts became the supreme lawmaking institute
  2. only judges can decide what is unconstitutional.
  3. No importance of voters, as one man decides what is legal. (one man tyranny)
  4. Judges only considers the legal aspects of matters, by ignoring the social and economical aspects
  5. Autocracy of judges
  6. And Other institutions are always under the fear of judicial review.

Limitation :

As we discussed above , using the power of judicial review, courts can nullify any act or decision of executives and legislative bodies. But the court cannot interfere in the matter which is not against the Constitution.

Position In Pakistan:

Article 184 (3) and 199 of the constitution of Pakistan Authorize The Supreme Court and the high courts. To use the power of judicial review. According to above articles the powers exercised by the public officers, are restricted by the law. And you can question it in the court if they are against the law.

Case Law:

Marbury vs Madison Case (1803):

  1. Background
    The dispute starts in 1801, from the political rivalry between the president John Adams and the President Thomas Jefferson. Jefferson won the presidential election of 1800, So Adams appointed many supporters of him and the federalist party, as justice of the peace to frustrate the new president and the supporters of Democratic-Republican Party, just before two days of his presidential term.
  2. Facts :
    • Marbury was appointed as a justice of peace in the district of Columbia by the President Adams on 2 days before his last day in office. But President Could not deliver the commission to Marbury.
    • The Next President Jefferson and his secretory Madison refused to deliver the commission to the Marbury.
    • Marbury petitioned in the supreme court for a writ of mandamus under the judiciary act of 1798.
  3. Decision :
    In his decision the Chief justice John Martial said , the refusal of Madison to give commission to the Marbury was illegal, and court can give orders to Madison, But he did not did so. By referring to the judiciary act of 1789, which says that court can only issue writ of mandamus in the cases which are against the constitution.

Conclusion

To conclude the discussion I will say, Judicial review is the authority of the court , to support the doctrine of separation. Which empowers the courts to work as a check on the political system.

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