- Separation of powers — Judicial review of executive action — Judicial review of legislation — Judicial independence — Judicial power — Judicial review — Judicial decisions
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. Judicial review means review of acts issued by the legislature or an executive body by a judicial authority for their consistency with higher law, namely the constitution (in the case of primary legislation) and statutory law (in the case of executive acts, including secondary legislation). It seems that the term was first used with regard to the process by which courts monitored administrative agencies for their compliance with statutory requirements before it was extended to include the already well-entrenched process by which courts enforced constitutional law against legislatures in the United States (US) in the early twentieth century (Whittington 388). In the United Kingdom (UK), where no judicial process to check the constitutionality of statutory legislation has been introduced to date, the original use of the term has been preserved although in a somewhat extended form, referring to the judicial control of the lawfulness of all decisions by public bodies and others exercising public functions except primary legislation (De Smith’s Judicial Review 1-001, 3-011).
2. This article will focus in its first part on the development, the main forms, and issues of constitutional judicial review, or constitutional review (part B). In a second part, it will address the main forms and issues of judicial review of administrative action, including its constitutional dimensions (part C). In both cases, a broad concept of judicial review is used which covers not only the judicial mechanisms and procedures of review in the strict sense, but also review mechanisms designed to check the constitutionality or legality of measures taken by public bodies which are operated by institutions established outside the traditional judiciary.
B. Constitutional Review
1. Basic Models
3. The practice of constitutional review, understood as the power of the courts to interpret the constitution and refuse to enforce legislative provisions that they consider to be in conflict with it, dates from the early American Republic and was expressly embraced by the Supreme Court of the United States in the seminal Marbury v Madison Case (US) (1803). In that decision the US Supreme Court held that, as it is the main purpose of constitutions to define limits for the exercise of governmental powers, including those of the legislature, these limits can and have to be enforced by the judiciary ‘as it is emphatically the duty and province of the judicial department to say what the law is’. Although constitutional review did not remain unchallenged as it is not provided for in the text of the US Constitution: 17 September 1787 (as Amended to 5 May 1992) (US), it has become a fixture of the US constitutional system since the 1930s when the proponents of the New Deal, faced with opposition from the Supreme Court to many of their key policies, did not propose to restrict constitutional review but instead pursued a strategy of capturing the courts and turning the power of constitutional review to their advantage (Whittington 392). The US model of ‘decentralized’ constitutional review—as a function which can be exercised by all courts of law, not just the Supreme Court—was adopted in a number of countries other than the US in the course of the nineteenth century, notably in Latin America (Fernández Segado 64) and Northern Europe (Helgadóttir 1).
4. An alternative model of constitutional review was introduced in the Constitution of Austria: 1 October 1920 (Austria) which provided for a specialized body, the Constitutional Court of Austria (Verfassungsgerichtshof), to exercise the power to review the constitutionality of (statutory) legislation. As the control of constitutionality of laws is concentrated in a specialized jurisdiction which does not form part of the ordinary judiciary, this system of constitutional review is also known as ‘centralized’ constitutional review (see constitutional courts / supreme courts, general). The example of Austria inspired the introduction of similar review mechanisms in other European countries like Czechoslovakia and the Spanish Republic in the inter-war period and, with more lasting effect, influenced the establishment of autonomous constitutional courts in Western Europe following the end of the Second World War, starting in Italy and West Germany. From there it spread to other countries in Southern Europe and, after the end of the Cold War, to Eastern Europe and also to countries in Latin America, Africa, and Asia.
5. A third model of constitutional review was established in France in 1958. It is closer to the Austrian than to the US model, as in the French system the determination of the constitutionality of legislation is placed exclusively in the hands of a specialized body outside the ordinary judiciary, the Constitutional Council of France (‘Conseil Constitutionnel’, ‘Council’, or ‘Constitutional Council’) (Constitutional Council of France (Conseil Constitutionnel)). As its name already indicates, the Council is not a judicial body in the traditional sense: its members are not required by the constitution or the implementing Law on the Constitutional Council (Institutional Act on the Constitutional Council: Ordinance 58-1067 of November 7, 1958 (as Amended to Institutional Act No. 2011-410 of April 14, 2011)) to have a degree in law or some minimum professional experience as a lawyer, judge, or professor of law. The former presidents of the republic are even members ex officio (Art. 56(2) Constitution of France: 4 October 1958 (as Amended to 23 July 2008) (Fr)). In addition, the Council until fairly recently was limited to the control of the constitutionality of statutes prior to their promulgation and entry into force: once a statute had been signed by the president of the republic, its constitutionality could not be questioned, neither by the courts nor by law enforcement agencies or individual parties. A procedure to check the constitutionality of legislation which has already entered into force was only introduced in 2008/10, when the highest bodies of the administrative law jurisdiction and of the ordinary judiciary, the Conseil d’État and the Cour de Cassation, were given the right, upon submission by a lower court acting on the request of a party to a case pending before it, to refer a law on which the decision in the case depends to the Constitutional Council for review of its consistency with the constitutionally protected fundamental rights. Like US and Austrian-style constitutional review, French-style constitutional review has also served as inspiration for the establishment of constitutional review institutions and procedures in a number of other countries, particularly in northern and western Africa and in the Middle East.
6. In the decades after the Second World War, and especially following the end of the Cold War, most countries of the world have adopted some form of constitutional review or another, thus turning constitutional review into a truly global phenomenon. In the process a lot of experimentation has taken place, which has seen the adaptation of the ‘historical’ models of constitutional review to special local needs and traditions and their merging into new ‘hybrid’ review institutions and mechanisms. As the new as well as the ‘historical’ systems of constitutional review have kept evolving, the reference to certain basic or original types of constitutional review when talking about the system of constitutional review in particular countries has lost much of its relevance.
2. Object of Constitutional Review
7. Constitutional review applies to the laws enacted by parliament, in whatever form and procedure. While most constitutions do not distinguish between several categories of statutes, the constitutions of a number of countries—France, Spain, Portugal, and most Latin American countries—recognize the so-called ‘organic laws’ (lois organiques, leyes organicas) as a special category of statutes. These are laws to which the constitutional text expressly refers for the implementation of the institutions and rights which are established or guaranteed by it. They have to be adopted by special majority. In those countries where the constitution recognizes organic laws as a distinct category of laws, they are equally subject to constitutional review. In the French case, this review is compulsory: every organic law has to be submitted to the Conseil constitutionnel for review of its constitutionality before entry into force (Art. 61(1) Constitution of France).
8. Constitutional review may even extend to laws amending the constitution. The Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017) (Ger) expressly provides that amendments to the Basic Law affecting the division of the federation into Länder, their participation on principle in the legislative process, or the principles laid down in Article 1 (inviolability of human dignity, legally binding force of fundamental rights on all public authorities) and Article 20 of the Basic Law (democracy, rule of law, the social state) shall be inadmissible. Consequently, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) has claimed and exercised the right to examine constitutional amendments passed by the required two-thirds majorities in the Bundestag and the Bundesrat for consistency with the constitutional fundamentals set out in Article 79(3) of the Basic Law (BVerfGE 30, 1 (Ger)). The example of the German Constitutional Court has been followed in recent decades by other constitutional courts, often on a less clear textual basis. The Supreme Court of India has reserved for itself the right to check constitutional amendments and to reject those which alter the basic structure of the Indian Constitution (Kesavananda Bharati v State of Kerala (India); Minerva Mills Case (India)). The basic structure doctrine has found its way into other constitutional jurisdictions on the subcontinent (Pakistan, Bangladesh), and beyond (Roznai 47). In a similar vein, the Constitutional Court of Italy (La Corte Costituzionale Della Repubblica Italiana) has declared that certain ‘supreme principles’ of the constitution, including the republican form of government, may not be modified by constitutional amendment (Decision 1146/1988 (Italy); entrenched clauses).
3. Forms of Constitutional Judicial Review
(a) Abstract and Concrete Review
9. Judicial review of legislation takes place in different procedures and forms. The most important distinction here is between ‘abstract’ and ‘concrete’ review proceedings. Concrete review takes place in the context of adversarial litigation which focuses on the legal effects of the challenged legislation on the rights and interests of the parties to a case. By contrast, abstract review is an objective procedure which allows the court to examine the constitutionality of the legislation in every aspect. Constitutional review in the US mostly takes the form of concrete review, as the ‘cases and controversies’ requirement in Article III Section 2 of the US Constitution seems to exclude abstract review proceedings. However, in recent decades the US Congress has altered the practical effect of the case-or-controversy requirement for the US Supreme Court, facilitating judicial hearings of disputes that might not have been recognized as actual cases in the nineteenth century. In particular, Congress now routinely fast-tracks to the Supreme Court constitutional challenges to statutes before they are implemented, and has authorized federal courts to issue declaratory judgments as a remedy that likewise opens the door to constitutional suits before the actual application of a statute (Whittington 391). In many European constitutional systems, on the other hand, abstract review is a standard procedure well established in the national constitutions and constitutional court laws (eg Austria, Germany, Italy, France, Spain).
10. In addition to the abstract review of legislation, constitutions and constitutional court laws normally also make provision for concrete review proceedings. Such procedure has recently also been introduced by constitutional amendment in France, after five decades in which only abstract review proceedings could be brought, and this only in the short period between the final adoption of the law by parliament and its signature and promulgation by the president of the republic. The French reform has been embraced by other countries which previously had known only abstract review proceedings (eg Tunisia, Morocco), or none at all (Jordan).
11. As a result, most constitutional review systems today know some form of concrete review as well as some form of abstract review. Whereas the power to conduct abstract reviews is concentrated in the hands of the supreme court/constitutional court, concrete reviews may also be conducted by other courts, especially in ‘decentralized’ systems of judicial review, ie those without a specialized constitutional court or tribunal. An illustration is Mexico, where the traditional competence of the courts to incidentally review the constitutionality of legislation in the framework of amparo proceedings is guaranteed and regulated in Article 107 of the Constitution (Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 5 February 2017)), while the competence to hear and to determine actions of unconstitutionality (acciones de inconstitucionalidad) that have as their object to raise potential inconsistencies between a norm of general character and the constitution on application of the public bodies listed in Article 105(II) of the Mexican Constitution is vested exclusively in the Federal Supreme Court.
12. Major variations exist with regard to the way in which the review by the constitutional court is integrated into the ordinary judicial procedure in which the issue of the unconstitutionality of the legislation has first been raised, and to the role of the parties to the original case in the constitutional review procedure. In the US and other countries with a decentralized system of judicial review, concrete review is part and parcel of the ordinary jurisdiction of courts, and the parties to that litigation have all the rights which parties before the courts normally have. By contrast, in countries with a specialized constitutional jurisdiction, the examination and resolution of the issue of constitutionality normally takes place in an interlocutory procedure: the proceedings before the ordinary court in which the issue of constitutionality has initially been raised are suspended until the constitutional court has issued its ruling on the constitutionality of the legislation. In Germany, references to the Federal Constitutional Court can be made directly by the court before which the issue of constitutionality has first been raised (Art. 100(1) Basic Law (Ger)). In France, on the other hand, the inferior courts have to submit the issue of constitutionality to the highest hierarchical court—the Conseil d’État in the administrative law jurisdiction, the Cour de Cassation in the civil and criminal law jurisdiction—which determines whether the statutory requirements for a reference to the Constitutional Council are met. No appeal is possible against their decision not to refer the matter to the Constitutional Council (Sections 24–4, 24–5 French Constitutional Court Law (Fr)).
(b) Ex ante and ex post Review
13. Another distinction in constitutional review proceedings relates to the moment at which the court is asked to check the constitutionality of legislation: the court may either be requested to intervene before the entry into force of the legislation (ex ante control) or after its promulgation and entry into force (ex post review). The first form of control may be said to be more respectful of the authority of the legislature as only bills which have not yet become law are a permissible object of external scrutiny, and eventually, censure; nor does this form of review raise major issues with regard to the treatment of right and obligations which may already have been acquired or been entered into on the basis of a piece of legislation prior to the declaration of its unconstitutionality by the court. Nevertheless, only a handful of countries, including France and Hungary, provide for the possibility of ex ante review of legislation in their constitutions and constitutional court laws (Art. 61(2) French Constitution; Art. 24(2)(a) Fundamental Law of Hungary: 18 April 2011 (as Amended to 20 June 2018). Ex post review, on the other hand, is only possible once the law in question has been promulgated and has entered into force. While ex ante control can only take the form of an abstract review as the legislation concerned has not yet started to be applied, ex post review can take both forms, abstract as well as concrete.
14. The distinction between ex ante and ex post review also has important implications for the applicants which have the right to initiate a review proceeding before the constitutional court (access to constitutional courts / supreme courts). In the abstract review procedure, standing (locus standi) is normally limited to the heads of state and of government, the cabinet, a fixed number of members of the legislative branch, and other public agents. In France, for example, a statute may be referred to the Constitutional Council by the president of the republic, the prime minister, the presidents of the two houses of parliament, or by a group of 60 members of either of the two houses of parliament (Art. 61(2) French Constitution). Similarly, the right to apply for an abstract review of a parliamentary statute in Germany is limited to the Federal Government, a Land government, and a quarter of the members of the Federal parliament (Art. 93(1)(2) Basic Law). The list of public bodies which may initiate an accion de inconstitucionalidad in Mexico is considerably longer: in addition to the federal executive and a third of the Chamber of Deputies, the Senate and state legislative organs, registered political parties, the federal and state human rights protection bodies, the national data protection agency, and the Attorney General of the republic may also file applications for abstract constitutional review (Art. 105(2) Mexican Constitution). Neither in Mexico nor in the other countries, however, do individuals have the right to apply for abstract review proceedings.
15. By contrast, constitutional regulation today regularly provides for a formal role of individual parties in concrete review proceedings. In Portugal, parties to the litigation in which the issue of the constitutionality of a legislative provision has initially been raised have the right to appeal a judicial decision applying the allegedly unconstitutional provision to the Constitutional Court (Art. 280 Portuguese Constitution: 2 April 1976 (as Amended to 22 June 2005). In France, concrete review proceedings can only be initiated by the party which claims that the statute on which the outcome of the case depends violates its fundamental rights under the constitution; the matter may in no case be raised ex officio (Section 23-1 Law on the Constitutional Council (Fr)). In Italy and Germany, on the other hand, the right to initiate a concrete review is limited to the court before which the question of constitutionality of a legislative provision is raised for the first time. It is up to the court to decide whether to refer the matter to the constitutional court or not. The constitutional court will then check whether the constitutionally or statutorily fixed criteria for the admissibility of the referral are met. In Germany, however, citizens may use the constitutional complaints procedure to challenge an allegedly unconstitutional law directly before the Federal Constitutional Court, without having to wait for an act which implements the law in relation to the individual concerned (BVerfGE 65, 1 (Ger)).
5. Standards of Review
16. Among the powers of constitutional courts, the right to check the constitutionality of parliamentary legislation still occupies a special place. In countries in which judicial review of legislation was introduced, it was often vividly contested because it seems to run counter to fundamental principles of democracy, namely the superior democratic legitimacy of the people’s elected representatives in the exercise of their law-making powers. The courts often practise some form of judicial deference or another with regard to the will of the elected legislature in the exercise of their review powers. They often accord the legislature, under some name or another, a margin of appreciation in the shaping of legislative policies which are based on a political appreciation of future developments. The legislature enjoys a margin of appreciation namely in assessing the suitability of certain means for attaining a constitutionally legitimate aim (BVerfGE 50, 290, 332 (Ger)).
17. Moreover, if the wording of the statute allows for several interpretations, constitutional as well as unconstitutional ones, the constitutional court will normally opt for the interpretation which is in conformity with the constitution, even if a different interpretation of doubtful constitutionality may be closer to the spirit of the legislation and the original intention of the legislature (interpretation of constitutions). This approach has been raised to the status of distinct interpretive technique in some countries, including Germany, where it is known as verfassungskonforme Auslegung (BVerfGE 83, 201, 214 (Ger)), France (décision de conformité sous reserves d’interprétation; Decision 59-2 DC (Fr)), and Mexico (interpretación conforme; Miranda Camarena and Navarro Rodriguez 73).
18. With regards to the substantive standards of review, the parameters vary from one system to the other, although some form of proportionality test is today used in most constitutional jurisdictions. As formulated by the German Federal Constitutional Court, the requirements of this principle are threefold. To start with, the measures encroaching upon the fundamental right must be appropriate with regard to the goal pursued. Secondly, they must be necessary. This requirement is not met when there are other measures which are equally effective but would infringe the fundamental right involved to a lesser degree. Finally, the burden placed upon individual liberty by the relevant measure may not outweigh the benefit of the proposed measure to the general interest (BVerfGE 90, 145, 172–3 (Ger)).
19. US courts use different tests or levels of scrutiny for assessing the constitutionality of legislation in the exercise of their review powers. The most stringent standard is strict scrutiny, which is used when a fundamental constitutional right is infringed, either one expressly listed in the bill of rights, or a right the Supreme Court has deemed a fundamental right protected by the due process clause or liberty clause of the US Constitution’s 14th Amendment, or when legislation is based on a ‘suspect classification’, such as race or national origin. To pass strict scrutiny, the legislation in question must be justified by a compelling governmental interest, must be narrowly tailored to achieve that goal and interest, and must constitute the least restrictive means for achieving that interest. In all other cases, less stringent standards apply, notably the intermediate scrutiny, which requires that the law challenged furthers an important governmental interest and is substantially related to that interest, and the rational basis scrutiny as the least vigorous standard which seeks to ascertain whether a law is rationally related to a governmental interest (United States v Caroline Products Company (1938) (US)). Especially in countries shaped by the common law the reasonableness test, which was originally developed in England as a yardstick for checking the legality of administrative action (see below), still plays a role. This is the case in India, for example, where the Supreme Court bases its review practice on Article 14 of the Constitution of India and uses the reasonableness test to identify legislation which is contrary to the principle of equal protection of the laws enshrined in that article (equality). However, it is still not clear from the jurisprudence of the Supreme Court of India whether the standard of ‘reasonableness’ applies equally to legislative and non-legislative measures, or whether a more lenient test of ‘manifest unreasonableness’ is reserved for testing the constitutionality of statutes (Shayara Bano v Union of India and Others 375 (India); Jalan and Rai 436).
6. Effects of Constitutional Review
20. The effects of a court decision holding a legislative provision unconstitutional are regulated in the relevant procedural law. In countries with a specialized constitutional court these provisions are to be found in the constitution and in the law on the constitutional court. As in civil law countries, judgments—including those by the highest courts—normally effects only inter partes, the binding effect erga omnes of a decision declaring the unconstitutionality of a legislative provision—or affirming its constitutionality—is expressly regulated in the constitution or the law on the constitutional court. Generally the decision produces effects only for the future, but the law on constitutional court procedure may provide otherwise, especially with regard to the re-trial of convicted criminals in cases in which the conviction was based on a law later declared unconstitutional. Conversely, the constitutional court may abstain from declaring the nullity of the unconstitutional provisions right away, instead fixing a time limit within which the legislature must replace the provisions found to be nonconforming with the constitution. This technique is used for practical reasons, ie to avoid a legal vacuum in the period between the judgment and the entry into force of the new legislation (eg Germany), as well as out of ostentatious deference to the legislature (constitutional review as ‘remonstrance’ (eg in South Korea, see Ginsburg 780)).
21. In most cases, the scope of the legal effects of the court’s decision does not depend on the concrete or abstract character of the review proceedings. However, the constitution or the law on the constitutional court may provide otherwise. In Mexico, for example, judgments issued in amparo proceedings, including those based on the application of an unconstitutional statutory provision, traditionally had only limited effects. Still today, Article 107(II) of the Mexican Constitution provides that ‘judgments pronounced in amparo proceedings shall only produce effects for the petitioners who have requested them and be limited to affording them redress and protection in the particular case to which the petition refers’. It was only in 2011 that a constitutional reform was voted which allows, in specific circumstances, for a wider scope of amparo judgments: if the Supreme Court of the Mexican Federation declares that a ‘general norm’ (including a statute) is unconstitutional on two consecutive occasions, it has to inform the authority which issued the norm of these decisions. In turn, the authority shall have up to 90 days to eliminate the problem of unconstitutionality (by withdrawing the unconstitutional norm and/or by replacing it with a constitutional one). If this does not happen, then the Supreme Court may issue a general declaration of unconstitutionality of the contested norm with the votes of at least eight (out of eleven) Supreme Court Justices (Art. 107 II Mexican Constitution).
C. Judicial Review of Administrative Action
22. While constitutional review is today the most widely discussed form of judicial review in comparative law, it is neither the only nor the oldest form of judicial control of the exercise of public authority. In European countries in particular some form of judicial or quasi-judicial review of executive and administrative action developed long before the introduction of constitutional review of legislation. The institutional arrangements and procedures for the exercise of this control vary considerably from country to country, although the substantive issues to be addressed by the review mechanisms are very similar, and in recent decades the development of the various national systems has been subject to the harmonizing influence both of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) and European Union law.
1. Basic Models
23. Two basic models of judicial review of administrative action can be distinguished: forms of review exercised by the ordinary judiciary and review procedures operated by special tribunals outside the ordinary judiciary. France and Germany are two important representatives of the second model of judicial review of administrative action (see also administrative disputes in civil law jurisdictions). In France, the establishment of a separate system of control for administrative action was decisively influenced by the French Revolution. The Law of 16–24 August 1790 prohibited the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration. Complaints by citizens directed against the actions of the administration were not subject to the jurisdiction of the courts and had to be addressed to the competent minister whose decision could be appealed to the Conseil d’État as the advisory body of the government. The Conseil d’État, however, could not directly pronounce on the matter but would present its opinion to the head of state as the hierarchical superior of the minister. Only in 1872 was this practice of justice retenue abandoned and the Conseil d’État formally authorized to issue decisions in administrative law disputes in its own name. As it became increasingly difficult for the Conseil d’État to handle the growing number of applications, the reform of 1953 established the Administrative Tribunals (tribunaux administratifs) as courts of first instance for most administrative law disputes formerly handled by the Conseil d’État. A second reform in 1987 created the Administrative Appeals Courts (cours administratives d’appel), limiting the original jurisdiction of the Conseil d’État to cases concerning the legality of measures issued by central government ministers and bodies. In all other cases it exercises supervisory jurisdiction, either in the form of appellate jurisdiction over appeals from the Administrative Tribunals which have not been diverted to Administrative Appeals Courts by the 1987 reform, or in the form of cassation over decisions of the latter and a miscellany of specialized administrative jurisdictions.
24. In Germany, the question whether the task of checking the legality of administrative action should be entrusted to the ordinary courts or whether it should be assigned to specialized review bodies within the executive branch was an issue of major debate in the middle of the nineteenth century. Article 182 of the Constitution for the German Reich drafted by the members of the Frankfurt constituent assembly in 1848/49—which never went into effect—contained an express prohibition of administrative justice (Verwaltungsrechtspflege): all applications and petitions concerning the legality of administrative measures had to be submitted to the courts. However, after the failure of the Frankfurt Constitution the German states started to create their own superior administrative tribunals. But it was not until 1960 that the Federal Administrative Tribunal was established as the supreme administrative court for all of Germany and the creation of a comprehensive system of administrative law review was finally completed. Still today the term ‘ordinary courts’ in German legal terminology is reserved to the courts dealing with private and criminal law cases: the administrative courts form, together with the tax courts, social security courts, and labour courts, the specialized non-ordinary jurisdictions.
25. By contrast, the UK can be seen as the basic model and inspiration of all those legal systems, especially in the common law world, which have, at least officially, resisted the creation of a specialized and separate jurisdiction for the control of the administration. The opposition against French-style droit administratif was given a powerful expression by the eminent Victorian jurist Albert Venn Dicey (1835–1922) for whom the rule of law meant, in the first place, the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, or even of wide discretionary authority on the part of the government. The second pillar of the rule of law was equality before the law, understood by Dicey as the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts (Dicey 110, 114). This definition of the rule of law effectively ruled out the creation of special administrative courts or tribunals which could check whether the administration in a concrete case had acted in accordance with the special body of rules governing its activities collectively known as droit administratif. Instead, the enforcement of the (ordinary) law against the administrative authorities in this perspective is part and parcel of the jurisdiction of the ordinary courts.
26. However, in the twentieth century this seemingly unified system of judicial control of administrative action developed into a much more complex structure. In many fields of administrative law like immigration, public housing etc, administrative powers were conferred upon adjudicative agencies which applied the essentials of a judicial hearing as part of their decision-making process. By contrast, the general judicial control exercised by the English High Court (Administrative Court) in the judicial review procedure remained relatively weak (Brown and Bell 58), a fact which made the construction of a general administrative law in comparison to France and Germany more difficult. The Tribunals, Courts and Enforcement Act 2007 (UK) has finally integrated almost all previously separate tribunals into a new structure, comprising the First-tier Tribunal and the Upper Tribunal. The Upper Tribunal is a superior court of record, on which High Court judges may sit, concerned mainly with appeals from the First-tier Tribunal. The decisions of the Upper Tribunal may, if leave is granted, be appealed on points of law to the Court of Appeal which, if it allows the appeal, may either remit the matter back to the Upper Tribunal for re-decision, or re-make the decision itself.
2. Constitutional Function of Administrative Judicial Review
27. Originally, judicial review of administrative action was widely seen as a means to enforce the subordination of the administration to the will of the legislature rather than as an instrument to protect the rights of the citizen vis-à-vis the administration. It was based on the idea that independent control of administrative action is meant primarily to serve the public interest in a well-functioning and law-abiding administration, rather than the narrow interest of individual citizens in an effective protection of their rights. The French Conseil d’État developed the procedure for checking the abuse of administrative power (recours pour excès de pouvoir) in the exercise of its supervisory jurisdiction as an instrument to check the conformity of administrative action to statutory legislation (principe de légalité). It is only in recent times that the constitutional function of administrative review has been stressed in the doctrine and also in the jurisprudence of the Conseil constitutionnel. In 1994 the Council held that the procedure is an application of the right of access to effective protection of rights (garantie des droits) contained in Article 16 of the French Declarations on the Rights of Man and of the Citizen (CC No. 93-335 DC) (Fr).
28. Similarly, judicial review of administrative action in the British system originally had the purpose to ensure that the administrative and executive bodies limited themselves to exercising the powers which had been conferred upon them by parliament, and did not act outside these powers (ultra vires). However, it is increasingly recognized also in the UK today that in a constitutional democracy the role of judicial review is to guard the rights of the individual against abuse of public power, and that the standards applied by the courts in the exercise of their judicial review powers must ultimately be justified by constitutional principle, and in particular the rule of law (De Smith’s Judicial Review 1-016, 1-022).
29. In Germany, the constitutional function of judicial review of administrative action derives directly from Article 19(4) of the Basic Law, which provides that any person claiming that his or her rights have been violated by public authority shall have recourse to a court or tribunal. Similarly, in India the concept of review of administrative action is based on explicit constitutional provisions, and its scope takes colour from the body of jurisprudence that has grown around the fundamental rights guarantees in Part III of the Indian Constitution. In particular, the test whether administrative action is ‘reasonable’ is today firmly anchored in the equality guarantee of Article 14 of the Indian Constitution (Jalan and Rai 432).
30. The constitutionalization of judicial review of administrative action has been pushed even further by a number of constitutions which specifically provide for a constitutional right of individuals to administrative action that is lawful, reasonable and procedurally fair, and oblige the legislature to give effect to this right by providing for a review of administrative action by a court or, where appropriate, an independent and impartial tribunal. Provisions to this effect are found in a number of African constitutions adopted since the 1990s, eg Article 18 of the Constitution of Namibia (Constitution of the Republic of Namibia: March 21, 1990 (as Amended to October 13, 2014)); Article 33 of the Constitution of South Africa (Constitution of the Republic of South Africa: December 16, 1996 (as Amended to February 1, 2013)); Article 47 of the Constitution of Kenya (Constitution of the Republic of Kenya: May 6, 2010).
3. Scope of Review
31. The scope of judicial review of administrative action is fairly comprehensive. In principle, all measures by the administrative authorities and other bodies exercising public functions are subject to judicial review. Individual decisions as well as measures of general application, including delegated legislation (subordinate / delegated / secondary legislation), can be reviewed. There remain certain subject-matter exemptions, although their scope is diminishing. While the category of political decisions as an exempt category has not completely disappeared from judicial practice, it has been greatly reduced in size under the influence of the evolving fundamental rights jurisprudence which has not only propelled the growth of constitutional adjudication, but today also forms the basis, either explicitly or implicitly, of the review powers exercised by the administrative courts. In Germany, the category of non-justiciable acts (justizfreie Hoheitsakte; justiciability) has completely disappeared under the Basic Law. Today even certain decisions falling under the prerogative of mercy can be reviewed for their procedural propriety and their conformity with the principle of equality (BVerfGE 30, 108, 111 (Ger)). In France, the administrative courts still decline jurisdiction in respect of the so-called actes de gouvernement, but the once formidable group of measures falling within this category has been reduced to measures concerning the relations of the government with parliament on the one hand and with foreign states and international organizations on the other. By contrast, in cases where individuals and their rights are concerned, the Conseil d’État has progressively reduced the scope of the doctrine by applying the doctrine of ‘severable act’ (acte détachable): eg, an act which can be detached from the conduct of diplomatic relations is subject to judicial review by the courts (CE Ass (15 October 1995) Royaume-Uni de Grande Betagne et d’Irlande du Nord et gouverneur de la colonie royale de Hong Kong; CE Ass (3 July 1996) Koné, both concerning extradition cases).
32. In England, the traditional attitude that powers under the prerogative, which include notably those related to the use of the armed forces and the conduct of foreign policy, are not amenable to judicial review has been substantially altered following the landmark decision of the House of Lords in the GCQH case (Council of Civil Service Unions v Minister for the Civil Service). In that case the majority accepted that any governmental or administrative powers, regardless of their source, which are defined either explicitly or implicitly by reference to their object or to a particular procedure for their exercise, should be subject to judicial control to ensure that they are exercised in accordance with the applicable legal standards. These standards shall notably ensure that the procedural and substantive rights of individuals affected by the administrative measure in question are respected. As a result, the courts today deal with a number of issues that would have been considered as unsuitable for judicial review or non-justiciable not so long ago, including the prerogative of mercy (R v Secretary of State for the Home Department, ex parte Bentley (UK)), the power to issue and withdraw passports (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett (UK)), or the duty of the Foreign Office to provide diplomatic assistance to a British citizen abroad facing the threat of denial or miscarriage of justice (R (on the Application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs (UK)).
33. The conception of judicial review has a direct influence on the criteria adopted for determining the admissibility of claims brought in the review proceedings. The French jurisprudence on the issue of standing in the recours pour excès de pouvoir is dominated by a concern to facilitate the exposure of any administrative illegalities as far as reasonably possible. The Conseil d’État has admitted, for example, the interest of local taxpayers to challenge any measure which will have repercussions on the finances of their respective local authority (CE (29 March 1901) Casanova). Nor is standing under the French system restricted to cases where the applicant can point to a material interest which has been affected by the administrative decision; moral interests may also be sufficient, as in the case of religious worshippers objecting to the closing of their church (CE (8 February 1908) Abbé Deliard (Fr)).
34. In the UK, the relevant statutory provisions provide that the court shall not grant leave for an application for judicial review unless it considers ‘that the applicant has a sufficient interest in the matter to which the application relates’ (s31(3) Senior Courts Act 1981 (UK)). In judicial practice, a generous and flexible interpretation is given to the term ‘sufficient interest’ by the courts. If the administrative action which the applicant wishes to challenge interferes directly with his personal or public rights or has adverse financial consequences for him/her, then this will be an obvious case in which he/she will have standing. However, the courts may accord standing also to someone who would not otherwise qualify for lack of sufficient (personal) interest where exceptionally grave or widespread illegality is alleged. The more serious the issue at stake, the less significance will be attached to arguments based on the applicant’s alleged lack of standing (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Third World Development Movement (UK)).
35. In Germany, standing is based on Article 19(4) of the Basic Law, which guarantees any individual who has allegedly been violated in his or her rights recourse to a court. Access to judicial administrative review is thus in principle dependent on the applicant’s ability to show that the challenged measure has conceivably violated his or her rights (although the legislature remains free to exempt groups and organizations from this requirement and has done so notably in the field of environmental law). This restriction is less stringent than it may appear at first sight, however, as the rights whose violation may be invoked by the applicant in the judicial review include the constitutionally guaranteed fundamental rights which have been given a very broad interpretation by the German courts, led by the Federal Constitutional Court.
5. Defects of the Administrative Decision or Decision-Making Procedure Amenable to Review
36. As a rule, judicial control of administrative action is limited to legal issues and does not extend to the expediency of the measure under attack. The specific grounds of review have been developed over time in the jurisprudence of the courts and in some cases been codified by statute (see Art. 6(2) South African Promotion of Administrative Justice Act). They vary from one country to another. Nevertheless, using a broad brush, one can distinguish three main headings under which, mutatis mutandis, judicial review of administrative action is carried out in the bulk of cases: jurisdictional, procedural, and substantive legality. The first category concerns the (lack of) jurisdiction or competence of the administrative authority or public body to take the measure in question. The second group deals with the fairness of the decision-making process, in particular the exclusion of biased decision-makers from the procedure, the right to a hearing prior to the decision of the natural or legal person to which the decision will be addressed or which will be substantially affected by it, and the duty of the administrative authority to give reasons for its decision. Finally, the administrative measure can be reviewed for substantive defects. Here, the courts will check whether the decision conforms to the conditions and parameters fixed by the enabling statute and, if discretion is conferred upon the decision-maker, whether the discretion has been exercised in accordance with the enabling law and the general standards for the exercise of discretionary powers as expounded in the applicable case law of the courts.
6. Standards of Review
37. The general purpose of judicial review of administrative action is to enforce the conformity of administrative action with the law. Law in this context has both a narrow and a broader meaning. Its means the consistency of the measure under scrutiny with the legislation on which it is based, ie the enabling or empowering statute. In its second dimension, ‘law’ covers all those principles, rules and provisions which, while not specifically dealing with the administrative action which is being scrutinized, may have an impact upon its lawfulness because they impose general limits on various or all types of administrative action. The most important source of limitations on the freedom of action of the administration today are fundamental rights, regardless whether they are specifically referred to in the enabling legislation or not. They come into play especially in those cases where the law confers discretionary powers upon an administrative body.
38. The discretion of the administration when taking measures likely to have an impact on individual rights and interests is never absolute or unlimited. In the words of an English judge, discretion is to be ‘not arbitrary, vague and fanciful, but legal and regular’ (Sharp v Wakefield  AC 173, 179 (UK)). It has therefore long been accepted that the exercise of administrative discretion is in principle subject to control by the courts. On the other hand, in the exercise of this control the court cannot simply substitute its own decision for that of the administration since this would turn the court into the hierarchical superior of the administration and thus undermine the separation of powers. Thus the courts must strike a delicate balance in the exercise of their review powers: they must enforce the limits imposed by the constitution and the relevant legislation on the freedom of action of the administration without depriving the latter of its discretion conferred upon it by the legislature.
39. There exists widespread consensus that, as a general rule, the exercise of discretion by the administrative authority or public body must be rationally connected to the purpose for which discretion has been granted. This principle can be formulated in many different ways, with a higher or lower degree of specificity. Section 6(2) Promotion of Administrative Justice Act (S Afr) gives a detailed list of the grounds on which administrative action may be reviewed, including cases in which the action was taken ‘for a reason not authorized by the empowering provision’, ‘for an ulterior purpose or motive’, ‘in bad faith’, or ‘arbitrarily or capriciously’. In addition, actions may be challenged on the ground that irrelevant considerations were taken into account or relevant considerations were not considered, or that the action is not rationally connected to the purpose for which it was taken or the purpose of the empowering provision.
40. But administrative courts have often moved beyond the mere control whether the challenged administrative measure was taken for an improper or ulterior purpose or motive. These forms of an intensified rationality control have developed in national context, but are increasingly being shaped by international, supranational, and foreign influences.
41. In France, the Conseil d’État subjects the exercise of administrative discretion in a growing number of areas to the test whether the administrative body has committed a manifest error in the appreciation of the facts (erreur manifeste d’appréciation des faits) in reaching its decision. The test leads to the nullification of the administrative measure not only in cases where the administration has established the facts incorrectly or incompletely, but also in situations where the correctly established facts are evidently not capable of supporting or justifying the decision reached by it. Even more importantly, the general principles of law (principes généraux de droit) which protect basic rights and liberties, like freedom of opinion and equal access to the civil service, have been used by the Conseil d’État to interfere with administrative decisions even in those cases where no statutory limits were imposed on administrative action (see CE (28 May 1954) Barel (Fr)).
42. In Britain and other common law countries the concept of reasonableness serves traditionally as an umbrella for the different criteria which guide the courts in their assessment whether the discretion of the administration has been properly exercised in the case at hand. An ‘unreasonable’ or ‘irrational’ administrative decision has been described as one ‘which is so outrageous in its defiance of logic or accepted moral standards that no sensible persons who had applied his mind to the question to be decided could have arrived at it’ (Council of Civil Service Unions v Minister for the Civil Service (UK)). Decisions which defy the principles of logic include those which are arbitrary, or supported by inadequate evidence or by inadequate or incomprehensible reasons. The reference to ‘accepted moral standards’ or values, in contrast, seems to go beyond a mere rationality control, however defined, and includes the respect for basic individual rights and liberties.
43. In Germany, the principle of proportionality has long been used as the general test for checking whether the administration has exercised its discretion in a lawful manner. First developed by the Prussian Supreme Administrative Court to check the discretionary powers of police authorities, the principle was upgraded to constitutional rank after the Second World War by the German Constitutional Court which has employed it regularly to assess the consistency of measures by public authorities, including statutes, with the fundamental rights protected by the Basic Law. As in the field of constitutional law, the principle of proportionality applied by the administrative courts consists of three sub-tests: the specific action taken by the administration must be suitable to the end it wants to achieve; out of several measures which are equally capable of achieving the legitimate objective pursued by the administration, the one which causes the least injury to the individual concerned must be chosen; and the injury caused to the individual by the administrative measure in question must not outweigh its benefits for the community at large. At this stage, the different public and private interests at stake have to be weighed in order to strike a fair balance. The courts will as a rule limit their intervention to cases where the assessments made by the competent administrative authority are plainly wrong and a clear case of disproportionality can be made out.
44. Proportionality has become part of the case law of the European Court of Justice as a ‘general principle of law’, too, and is employed by the European Court of Human Rights (ECtHR) as a standard by which to assess a state party’s compliance with its obligations under the European Convention on Human Rights. It is also of growing relevance in a number of domestic jurisdictions other than Germany. While the control of erreur manifeste by the French administrative courts does not normally include the weighing of the advantages and disadvantages of the proposed measure for the community and the individual concerned, there are areas in which the Conseil d’État is nowadays willing to use proportionality as a yardstick for testing the legality of administrative measures. This jurisprudence has first been developed in expropriation cases (CE (28 May 1971) Ville Nouvelle-Est (Fr); state interference with private property), but is of growing relevance in other areas, too, particularly those where rights and freedoms which are protected under the ECHR are concerned. Similarly, the proportionality test has enjoyed growing prominence in England, under the influence of both European Union law and the ECHR. There is an intense discussion, in the courts as well as in the literature, about the relationship between proportionality and the traditional reasonableness test, and whether proportionality should become a separate ground of review, or whether it should supplant reasonableness as a ground of review.
7. Effects of Review
45. The remedies available under the different systems of judicial review of administrative action are broadly similar (remedies at constitutional courts / supreme courts). They include the power of the courts to quash or annul the administrative measure which is found to unlawfully interfere with the rights of the applicant. In addition, remedies which oblige the administration to adopt a certain course of action which it has rejected but is obliged to take under applicable law, are available in most systems (mandamus, injunction etc). A third type of remedies do not annul a measure issued by the administration or compel it to take a certain measure or decision required by law, but clarify the rights and obligations of the party which has applied for judicial review vis-à-vis the administration. Finally, the courts may award the applicant damages if he/she has suffered harm as a result of the unlawful conduct of the administration which cannot be redressed by other means, namely through the nullification of the measure concerned.
46. In common law countries, all these remedies are discretionary, ie they can be refused by the court on any ground which in the opinion of the court justifies such refusal (see s8 South African Promotion of Administrative Justice Act). By contrast, the remedies in continental countries are often of a statutory nature, which means that if the statutory conditions for the granting of a remedy are satisfied, the courts cannot deny it (see s113 of the German Law on Administrative Courts). However, the difference between both systems looks bigger on paper than it is in actual practice. Even in common law countries the requirements of the rule of law—and where applicable international obligations resulting from human rights treaties which require effective remedies for breach of guaranteed rights (see Art. 13 ECHR)—mean that the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow (Berkeley v Secretary of State for the Environment, Transport and the Regions).
47. Interim relief is in principle available in most legal systems (interim relief at constitutional courts / supreme courts). But usually the courts have broad discretion in balancing the public interest pursued by the administrative or public body with the rights of the applicant that might suffer irreparable harm if the execution of the administrative measure went ahead before a court has had the opportunity to look more closely at the merits of the case.
48. Judicial review forms the very backbone of the public law of modern states. While its origins vary considerably, from the supremacy of the constitution (US) to the doctrine of parliamentary sovereignty (UK), or souveraineté de la loi (France), a substantial measure of convergence in the practice of judicial review in the different legal constitutional and administrative systems can be observed over time, which is in large measure due to the increased importance of fundamental rights protection as the primary concern and organizing principle of the different forms of judicial review. In the field of constitutional law, this has been evident in the trend of strengthening the subjective character of constitutional review proceedings also in those legal systems which had originally conceived of them as objective proceedings, with no substantial role for the individual parties primarily affected by the legislation in question in the proceedings to challenge that legislation before the constitutional court. With regard to administrative judicial review a similar process has taken place, from the interpretation of the review mechanism as an objective procedure, designed to uphold the principle of legality or rule of law and to enforce the subordination of the administration to parliamentary legislation, towards an emphasis on the need to provide effective redress to the aggrieved individual against arbitrary or otherwise unlawful executive or administrative action. This development has culminated in constitutional regulation in a growing number of countries which explicitly provides for a constitutional right to lawful, reasonable, and procedurally fair administrative action, and the constitutional obligation of the state to establish judicial review procedures through which this right can be effectively enforced.
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