Limits on Access to Judicial Review
Steven D Schwinn
- Judicial review of executive action — Judicial review of legislation — Judicial review
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.
A. Introduction and Overview
1. The vast majority of progressive democratic constitutions explicitly provide for some form of judicial review. This means that courts in most democratic countries around the world have the power to rule an act of the legislature, or an action of an executive officer, inconsistent with the constitution, and thus unconstitutional. Most commonly, the courts can use the power of judicial review to rule an act of the legislature, or an action of an executive officer, in violation of an individual constitutional right.
2. Moreover, most progressive democratic constitutions provide an individual right to access the courts. Indeed, the right to access the courts is a mainstay of constitutional law. (The right to access the courts is also a mainstay of international human rights law. Every major international and regional human right instrument includes a right to access the courts for the protection of individual human rights). The German Basic Law includes an early example of the right of access to the courts, one that has influenced numerous other constitutions, especially in Europe: ‘Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts’ (Constitution of the Federal Republic of Germany: 23 May 1949, Art. 19(4) (Ger)).
3. The Constitution of the Slovak Republic provides a more recent example that, by its own terms, is somewhat more comprehensive and specific:
1. Every person may claim his or her right by procedures established by law at an independent and impartial court of law or other public authority of the Slovak Republic in cases specified by law.
2. Any person who claims to have been denied his or her rights through a decision made by a public authority may turn to a court of law to have the legality of the decision reviewed, unless otherwise provided by law. The review of decisions in matters of fundamental rights and freedoms shall not be excluded from the jurisdiction of courts of law.
3. Every person shall have the right to recover damages for a loss caused by an unlawful decision of the court, a governmental or public authority or by improper official procedure (Constitution of the Slovak Republic: 1 September 1992, Art. 46 (Slovk).
4. Similar provisions can be found in the Constitution of the Republic of South Africa: 11 October 1996, Section 34 (S Afr) (‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’); Constitution of the Republic of India: 26 November 1949, Art. 32(1) (India) (‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed’); Constitution of the Republic of Finland: 11 June 1999, Sec 21 (Fin) (‘Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice’); Constitution of the Italian Republic: 22 December 1947, Art. 24 (It) (‘Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law’); Constitution of Canada: 29 March 1867, Art. 24(1) (Can) (‘Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances’); Constitution of Japan: 29 October 1946, Arts 17 and 32 (Japan) (‘Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official,’ ‘No person shall be denied the right of access to the courts’).
5. Moreover, the ubiquitous rights to equality and due process provide additional protections against impediments to access to the courts. In particular, the right to equality (or equal protection of the laws) provides a right of equal access to the courts; the right to due process provides a right of access to the courts as a matter of fair procedure.
6. The right to access the courts for judicial review is often more defined, however. In particular, state constitutions that create an independent, Kelsen-type constitutional court (instead of a generalized apex court), provide that judicial review is ultimately the province of the constitutional court alone. These constitutions provide direct access to the constitutional court under certain circumstances and require that ordinary courts, when faced with a question of judicial review, certify the question to the constitutional court. The Constitution of the Czech Republic is typical:
‘Should a court come to the conclusion that a statute which should be applied in the resolution of a matter is in conflict with the constitutional order, it shall submit the matter to the Constitutional Court’ (Constitution of the Czech Republic: 16 December 1992, Art. 95(2) (Czech).
7. Further examples include the Constitution of Austria: 1 October 1920, Art. 89(2) (Austria) (‘In cases where a general court has doubts concerning the use of an ordinance based on illegality, an announcement about the republication of a law (state treaty) because of illegality, a law based on unconstitutionality or a state treaty because of illegality, it must file a petition for the repeal of this legal provision at the Constitutional Court’); Constitution of the Federal Republic of Germany: 23 May 1949, Art. 100(1) (Ger) (‘If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from . . . the Federal Constitutional Court where this Basic Law is held to be violated’); Constitution of the Republic of South Africa: 11 October 1996, Section 172 (S Afr); Constitution of the Slovak Republic: 1 September 1992, Art. 144(2) (Slovk); Constitution of the Republic of Korea: 12 July 1948, Art. 107 (S Kor).
8. Other constitutions permit lower courts to engage in judicial review, subject to appeal to the constitutional court (Constitution of the United States of America: 17 September 1787, Art. III (US)). These provisions do not limit access to the courts for judicial review (indeed, they often expand access, as when they provide for direct access to a constitutional court); they merely define which courts have ultimate authority to engage in judicial review.
9. But while the right to access the courts is widely recognized, there are some important restrictions or limits on access that many or more nations recognize as a matter of constitutional law, ordinary law, court rules, or practice. Most notably, jurisdictional requirements (which can derive from any of these sources) can limit access to the courts (jurisdiction). In addition, a litigant’s lack of resources, language barriers, and informational barriers can limit access to the courts. Finally, practical features of litigation can sometimes limit access to the courts.
10. This article reviews these limits. In particular, this article examines the limits on access to the courts and judicial review under the constitutions and practices of several states.
11. One note on the selected constitutions. The limits on access to judicial review in the states described below represent the range and kinds of the most typical limits on access to judicial review, across regions and different types of legal systems, although they do not necessarily represent every limit on access. They also represent different constitutional systems of judicial review. In particular, they represent systems with Kelsen-type independent constitutional courts (like Germany and South Africa, for example) and systems with apex courts that enjoy the power of judicial review (like the United States). As a general matter, systems with constitutional courts have fewer limits on access to judicial review—and therefore offer more open access to judicial review—than systems with apex courts that enjoy the power of judicial review. This is because state constitutions that establish an independent constitutional court often also provide for liberal access to the constitutional court and to the lower courts, as mentioned above. It is also because apex courts often limit their own power of judicial review in order to respect coordinate democratic branches of government in the name of the separation of powers (again, like the United States). In other words, state constitutions that establish an independent constitutional court hard-wire independent judicial review (and concomitant liberal access to judicial review) into their very constitutions, whereas state constitutions that establish only an apex court may invite limits on access to judicial review, because they do not similarly and robustly provide for and protect judicial review.
B. Principal Limits on Access to Judicial Review and Constitutional Protections against Them
12. There are five principal limits or barriers to access to judicial review: (1) jurisdictional requirements; (2) financial considerations; (3) language; (4) information; and (5) other practical features of litigation.
13. Importantly, these types of limits are different in kind. In particular, the first type of limits—jurisdictional requirements—are often a function of a state’s constitutional law providing for the jurisdiction of a constitutional or apex court, or a state’s constitutional separation of powers. In other words, the courts’ jurisdiction (as a barrier to access to judicial review) is often itself a constitutional imperative or principle. When a court encounters a constitutional jurisdictional barrier, the court must balance two competing constitutional concerns—the constitutional jurisdictional limitation and the competing right to access the courts.
14. The other types of limits—financial considerations, language barriers, informational barriers, and practical features of litigation—are practical limits on access related to a particular litigant or class. (A litigant may face a financial barrier or a language barrier, for example.) These exist aside from the courts’ constitutional jurisdiction or the separation of powers. When a litigant or court encounters these kinds of limitations, the court must consider only its own obligation to address the limitation and affirmatively provide access.
1. Jurisdictional Limits on Judicial Review
16. The principal jurisdictional limit on judicial review is the requirement that a plaintiff demonstrate standing. Other jurisdictional limits include a prohibition on courts hearing moot claims, and the requirement that courts hear only ripe claims. Finally, there are some other, similar jurisdictional limits on judicial review, often rooted in separation-of-powers principles. (Rules of procedure can also limit judicial review. For example, rules on pleadings and forms, limitations on causes of action, evidentiary rules, and other types of rules of procedure can limit judicial review, often in more subtle ways. These are generally beyond the scope of this article.)
17. As a general matter, state constitutions that create an independent constitutional court often contain less stringent jurisdictional requirements and more liberal access. This is often because those constitutions also specifically provide for access by way of direct access to the constitutional court, certification of constitutional questions to the constitutional court, or other means of access. These means are not as freely available—and, indeed, are often entirely foreclosed—in constitutions that create only an apex court (and not an independent constitutional court).
19. Standing is the most important, and the most widely adopted, requirement for a court’s jurisdiction, including jurisdiction for judicial review. Standing (locus standi) means that a person or organization must have a direct interest in a case before a court will hear it. Standing requirements range from the relaxed (which grant broader access to judicial review) to the very strict (which grant much more limited access to judicial review).
(i) States with Relatively Open Access to Judicial Review
20. States with independent constitutional courts often have relaxed standing requirements and even provide for generalized ‘third-party’ standing, ‘public-interest’ standing, or standing by public agencies or departments. These states sometimes permit any person to bring a constitutional claim, whether that person suffered a direct injury or not, although they sometimes require that a litigant has an ‘interest’ in the matter.
21. Many of these states provide for an ‘actio popularis,’ an action with relaxed standing requirements that any person may file a constitutional complaint in the state’s court system, often after exhausting other legal remedies. India provides a good example. In India, Art. 32 of the Constitution gives extensive original jurisdiction to the Supreme Court in regard to enforcement of fundamental rights. Thus, the Constitution provides for the ‘right to move the Supreme Court by appropriate proceedings for the enforcement of [constitutional rights] is guaranteed,’ and the Court has power to issue ‘directions or orders or writs’ to enforce those rights (Constitution of the Republic of India: 26 November 1949, Art. 32 (India)).
22. The Supreme Court of India also entertains matters in which the interest of the public at large is involved: public interest litigation. Public interest litigation, as discussed in this article, is a dilution of traditional standing requirements in order to ensure redress for those who are too poor or who are unaware of their legal rights. Public interest litigation permits actions to be brought on the behalf of individuals and groups by third parties—organizations and attorneys—even if those third parties lack a direct interest in the litigation.
23. The Indian Supreme Court provides an excellent example of a kind of special measure designed to enhance access to judicial review—public interest litigation. Public interest litigation is a dilution of traditional standing requirements in order to ensure redress for those who are too poor or unaware of their legal rights to gain access. Public interest litigation permits constitutional complaints to be brought to the Court on behalf of injured parties by third party organizations and attorneys. In particular, when a person or class of persons has suffered an injury as a result of a constitutional violation, and when that person or class is, because of poverty or disability or socially or economically disadvantaged position, unable to bring a constitutional complaint to the Court, then any person or organization acting in the public interest can bring an application in the Supreme Court on that person’s or class’s behalf. Any person or organization may invoke this jurisdiction on behalf of an unrepresented person or class or persons simply by addressing a letter to the Court. The Court has described public interest litigation thusly:
It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him (SP Gupta v Union of India Case (India)).
We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity is a totally different kind of litigation from the ordinary traditional litigation which is essentially relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the Court not for the purpose of enforcing the rights of one individual against another as happens in the case or ordinary litigation, but is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed (PUDR v Union of India (1983) (India)).
25. But public interest litigation is not without bounds. The Court has said that the touchstone of jurisdiction in public interest litigation is the public interest:
When a petition is filed as a public litigation ... the Court must satisfy itself that the party which has brought the litigation is litigating bona fide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition .... Even when a public interest litigation is entertained, the Court must be careful to weigh conflicting public interest before intervening (Raunaq International Ltd v IVR Construction Ltd (1999) (India)).
26. Newer African democracies also provide relatively relaxed standing requirements, also permitting ‘public-interest standing’ or ‘third-party standing’ on behalf of others. ‘In common law Africa’s new democracies, constitutional reform has liberalized the standing doctrine so that petitioners are no longer required by show personalized injury in order to bring suit’ (Prempeh 1297). For example, Art. 22(2) of the Kenyan Constitution permits ‘a person acting in the public interest’ and ‘an association acting in the interest of one or more of its members’ to lodge a constitutional complaint. Art. 22(3)(d) of the Kenyan Constitution says that ‘the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities’ in actions to enforce the Bill of Rights (Constitution of the Republic of Kenya: 12 December 1963, Arts 22(2) and 22(3)(d) (Kenya)). The Constitution of Ghana provides that:
A person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment; or any act or omission of any person, is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect (Constitution of the Republic of Ghana: 16 December 1996, Art. 2(1) (Ghana)).
[t]he Supreme Court shall, for the purposes of a declaration under [this provision] make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made (Constitution of the Republic of Ghana: 16 December 1996, Art. 2(2) (Ghana)).
28. Many Latin American states similarly provide for liberal standing. They do so through a right of amparo, a constitutional complaint by any person. The Constitution of El Salvador thus provides:
The Supreme Court of Justice, through the Constitutional Division, shall be the sole tribunal competent to declare the unconstitutionality of laws, decrees, and regulations, by their form or content, in a general and compulsory manner, and it may do so on the petition of any citizen (Constitution of the Republic of El Salvador: 15 December 1983, Art. 183 (El Sal)).
29. Similarly, the Spanish Constitution permits any individual or organization with a ‘legitimate interest’ to petition the constitutional court to challenge a violation of individual rights (Constitution of the Kingdom of Spain: 6 December 1968, Art. 162(1)(b) (Spain)). The Russian Constitution, too, seems to have relatively relaxed standing requirements, by its terms allowing third parties to bring a complaint. The Court also ‘shall check ... the constitutionality of a law’ ‘on receiving complaints about violations of the constitutional rights and freedoms of citizens and upon request of courts’ (Constitution of the Russian Federation: 12 December 1993, Art. 125(4) (Russ)).
(ii) States with a ‘Middle-Tier’ Standing Requirement
30. Some state constitutions provide for modestly more stringent standing requirements by requiring that litigants have a more direct interest in the matter. For example, in Germany, any person whose rights have been violated ‘by public authority ...may have recourse to the courts’ (Constitution of the Federal Republic of Germany: 23 May 1949, Art. 19(4) (Ger)). Constitutional complaints ‘may be filed by any person alleging that one of his basic rights or one of his rights [in certain other portions of the Constitution] has been infringed by public authority’ (Constitution of the Federal Republic of Germany: 23 May 1949, Art. 93(1)(4a) (Ger)). In Korea, any person whose constitutionally guaranteed rights have been violated ‘on account of an exercise or non-exercise of state power may file a constitutional complaint with the Constitutional Court, except against the judgment of ordinary courts’ (Constitutional Court Act: 5 August 1988, Art. 68(a) (S Kor)). In the Slovak Republic, the Constitutional Court has jurisdiction to review any laws, treaties, or regulations, including regulations of local bodies of state administration, for conformity with the Constitution (Constitution of the Slovak Republic: 1 September 1992, Art. 125 (Slovk)). In particular, it ‘shall decide on complaints of natural persons or legal persons if they are pleading the infringement of their fundamental rights or freedoms, or human rights and fundamental freedoms resulting from an international treaty which has been ratified by the Slovak Republic,’ and ‘complaints of the bodies of territorial self-administration against unconstitutional or unlawful decision ...into the matters of self-administration ..’. (Constitution of the Slovak Republic: 1 September 1992, Arts 127 and 127a (Slovk)). The Constitution grants access to ‘anyone whose rights are to become the subject of inquiry’ under these provisions (Constitution of the Slovak Republic: 1 September 1992, Art. 130(j) (Slovk)). The Constitution of Malawi contains a similar provision (Constitution of the Republic of Malawi: 16 May 1994, Art. 15(2) (Malawi) (‘Any person or group of persons with sufficient interest in the protection and enforcement of rights under this Chapter [‘Human Rights’] shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of Government to ensure the promotion, protection and redress of grievances in respect of those rights’). Similarly, Section 167 of the South African Constitution says that:
(6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court––
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.
(7) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection (Constitution of the Republic of South Africa: 11 October 1996, Section 167(6)-(7) (S Afr)).
(iii) States with Relatively Restrictive Standing Requirements
31. The United States provides the paradigmatic example of a system with relatively restrictive standing requirements. Again, this is because the United States has an apex court (not an independent constitutional court) and sparse textual provisions providing for judicial review. As a result, the Supreme Court of the United States has limited its own jurisdiction through standing requirements in the name of the separation of powers.
32. The United States Constitution grants jurisdiction to the United States federal courts, including the Supreme Court, over ‘cases’ and ‘controversies’ (Constitution of the United States of America: 17 September 1787, Art. III, Section 2 (US)). The United States Supreme Court has interpreted this language, and related separation-of-powers principles, to limit standing only to persons or organizations that can demonstrate an actual or imminent harm, particularized to the plaintiff or plaintiffs, caused by the named defendant or defendants (Massachusetts v EPA (2007) (US)). (In general, this means that third parties cannot assert the rights of injured plaintiffs, although, as discussed below, the Court has held that this a ‘prudential’ standing restriction, not a constitutional one.) The Court also requires that the plaintiff or plaintiffs demonstrate that the requested judicial relief redress that harm (Allen v Wright (1984) (US); City of Los Angeles v Lyons (1983) (US)). The Court specifically rejects third-party standing, except in extremely limited circumstances (Singleton v Wulff (1976) 428 US 106 (US); Craig v Boren (1976) 429 US 190 (US)).
(b) Ripeness and Mootness
33. In addition to standing, in some systems ‘ripeness’ and ‘mootness’ requirements may operate as a limit on judicial review. These requirements mean that a case must represent a current adversarial dispute—one that has come to full fruition, on the one hand, but has not yet been resolved, on the other. Like the standing requirement, states with an independent constitutional court have relatively less stringent ripeness and mootness requirements, if they have those requirements at all. Indeed, many state constitutions with an independent constitutional court permit the constitutional court to issue ‘advisory opinions’—opinions on the constitutionality of proposed or actual legislation, or an executive act, that arise outside of an actual, current dispute between litigants, and which therefore, by definition, violate ripeness and mootness principles. These systems thus provide much more liberal access to judicial review than systems that require that a case represent a current dispute.
34. By one estimate, 81 per cent of world constitutions gave authority to a constitutional court to review legislation before its enactment (Ginsburg and Elkins 1445). These constitutions permit the executive, the legislature, or some other government body or official to petition a constitutional court for a pre-enactment decision on the conformity of the proposed law or treaty with the constitution. South Africa provides a good example. Section 79 of the South African Constitution permits the President to return a bill to the National Assembly for reconsideration, if the President ‘has reservations about the constitutionality of the Bill’. If the National Assembly fully accommodates the President’s reservations, then the President must either sign the bill, or submit it to the Constitutional Court ‘for a decision on its constitutionality’. If the Court ‘decides that the Bill is constitutional, the President must assent to and sign it’ (Section 121 contains a similar procedure for the Premier of any province). Moreover, members of the National Assembly may apply to the Constitutional Court for an order declaring that ‘all or part of an Act of Parliament is unconstitutional (Constitution of the Republic of South Africa: 11 October 1996, Section 80 (S Afr)). Such an application requires support of at least one-third of the members of the Assembly (Section 122 contains a similar procedure for members of a provincial legislature). Finally, the Court has authority to review the constitutions of provinces for conformity with the Constitution (Constitution of the Republic of South Africa: 11 October 1996, Section 144 (S Afr)).
35. On the other hand, systems that impose rigorous ripeness and mootness rules limit access to judicial review. These barriers to access to judicial review are perhaps most pronounced in the United States. The United State Supreme Court, under Art. III, Section 2, and related separation-of-powers principles, has imposed additional justiciability requirements called ‘ripeness’ and ‘mootness’. Under the Court’s ripeness doctrine, the Court lacks jurisdiction to consider disputes that have not yet come to full fruition, and where the parties are not therefore not sufficiently adverse. For example, a case in which a party lodges a pre-enforcement challenge to a statute or regulation may be non-ripe, and therefore non-justiciable, although there is an important exception to this rule (Abbott Laboratories v Gardner (1967) 387 US 136 (US)). In general, a pre-enforcement challenge is not a ‘case’ or ‘controversy’ under Art. III, Section 2, of the Constitution, and the Court therefore lacks jurisdiction over it. Another example is a case in which a party (usually a lawmaker) asks the Court for an advisory opinion as to the conformity of a proposed law to the Constitution. While some constitutions specifically provide for advisory opinions (discussed more fully below), the United States Supreme Court has ruled that an advisory opinion lacks the sufficient adversity between the parties for judicial resolution and violates separation-of-powers principles, and that the Court therefore lacks jurisdiction over it (Flast v Cohen (1968) 392 US 83, 96–97 (US)).
36. Under the Court’s mootness doctrine, the Court lacks jurisdiction to consider disputes that come to full resolution without a judicial decision. For example, if parties settle a dispute before a court rules on it, or if a litigant dies and the case cannot survive the death, or if a challenged law is repealed, the courts lack jurisdiction over the dispute, because the case is moot. While the Court has created certain important exceptions to the mootness doctrine, in general the Court has said that a moot case does not have the necessary adversity between the parties for judicial resolution and is not a ‘case’ or ‘controversy’ under Art. III, Section 2, of the Constitution, and that the Court therefore lacks jurisdiction over it (Friends of Earth, Inc v Laidlaw (2000) 528 US 167 (US)).
(c) Other Limits on Jurisdiction
37. Finally, other limits on the courts’ jurisdiction create limits on access to judicial review. Again, as with the requirements discussed above, states with independent constitutional courts have relatively fewer, if any, other constitutional limits on their jurisdiction. These systems provide relatively open access to judicial review, even permitting advisory opinions.
38. In contrast, again in the United States, the Supreme Court has imposed other limits on jurisdiction based on separation-of-powers principles and prudential considerations. Thus, the Court has ruled that it lacks jurisdiction to consider cases that raise a ‘political question,’ that is, a question that falls within the exclusive constitutional responsibility of, or is better suited to, another branch of government (Baker v Carr (1962) 369 US 186 (US)). The Court has also ruled that it lacks jurisdiction over cases in which a third party seeks to assert the claims of an injured plaintiff. But the Court has ruled that this ‘third-party standing’ rule is prudential, and not constitutional, so that Congress can provide by legislation third party standing (Warth v Seldin (1975) 422 US 490, 501 (US)).
2. Financial Barriers to Access
39. The often high financial costs of litigation can create a different kind of limit on access to judicial review, especially for individuals who cannot afford the costs of litigation.
40. Some state constitutions specifically protect against financial barriers to judicial review, thus liberalizing access to judicial review for those who cannot afford the costs of litigation. The Kenyan Constitution provides a good example. Art. 22(3)(c) provides that ‘no fee may be charged for commencing’ a judicial proceeding to enforce the Bill of Rights (Constitution of the Republic of Kenya: 12 December 1963, Art. 22(3)(c) (Kenya)). And Art. 48 provides, ‘The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice’ (Constitution of the Republic of Kenya: 12 December 1963, Art. 48 (Kenya)). The Constitution of Spain similarly provides, ‘Justice shall be free when thus provided for by law, and shall in any case be so in respect of those who have insufficient means to sue in court’ (Constitution of the Kingdom of Spain: 6 December 1968, Art. 119 (Spain)). The Italian Constitution simply provides, ‘The poor are entitled by law to proper means for action or defense in all courts’ (Constitution of the Italian Republic: 22 December 1947, Art. 24 (It)).
41. Some states provide specific litigation-related resources for the poor. Most commonly, a constitution may provide for appointment or assistance of counsel. The Constitution of the Czech Republic provides, ‘In proceedings before courts, other State bodies, or public administrative authorities, everyone shall have the right to assistance of counsel from the very beginning of such proceedings’ (Constitution of the Czech Republic: 16 December 1992, Art. 37(2) (Czech)). Other state constitutions provide appointed counsel under certain circumstances as a matter of due process or equal protection of the laws, even if the constitution does not specifically provide for appointed counsel. (Most constitutions provide for appointment of counsel for a defendant in criminal cases. This is beyond the scope of this article.)
42. Other states provide resources through court rules or legislation. For example, in Korea, a person intending to file a constitutional complaint with the Constitutional Court but ‘has no financial means to hire an attorney as counsel ...may request the Constitutional Court to provide court-appointed counsel’ (Constitutional Court Act: 5 August 1988, Art. 70 (S Kor)). Similarly, in India, a person without means to file a case in the Supreme Court, or a person who belongs to other specified groups, is entitled to receive free legal assistance from the Supreme Court Legal Aid Committee (see Supreme Court of India ‘Jurisdiction of the Supreme Court’). Many other states offer some form of legal aid to indigent persons, and some states have fee- or cost-shifting statutory provisions that permit a successful party to recoup at least a portion of costs incurred in accessing judicial review.
3. Language Barriers to Access
43. Language can also post a limit on access to judicial review, especially if the courts use a single or predominant language, and if the state has substantial language minorities. Some state constitutions address language barriers. For example, the Constitution of the Czech Republic provides, ‘Anyone who declares that he does not speak the language in which a proceeding is being conducted has the right to the services of an interpreter’ (Constitution of the Czech Republic: 16 December 1992, Art. 37(4) (Czech)). The German Constitution contains a similar provision, without the specific right to an interpreter: ‘No person shall be favoured or disfavoured because of ... language ..’ (Constitution of the Federal Republic of Germany: 23 May 1949, Art. 3(3) (Ger)). Other states protect against language barriers through more general language-rights provisions, due process principles, equal protection principles, or other, similar access-to-justice principles.
4. Informational Barriers to Access
44. Lack of information about the judiciary, judicial review, or constitutional rights can also create a limit on access to judicial review. This may be a particular problem in certain states or regions, where a population or people may not have information or knowledge about the judiciary. For example, as one scholar noted with respect to Africa,
A critical challenge facing judicial review in contemporary Africa is how to generate public demand for judicial enforcement of the constitution in a society characterized by extremely low levels of legal literacy and rights awareness.
. . .
Widespread lack of knowledge about rights is compounded by the African public’s general unfamiliarity with the notion of suing government. . . . Lacking an organized public interest of human rights bar or a tradition of pro bono representation, Africa’s common law lawyers have generally not seized upon the liberalization of constitutional standing to seek judicial enforcement of the constitution. This results in a gross underenforcement of constitutional guarantees in contemporary Africa
5. Practical Barriers to Access
46. Finally, there are practical barriers to access based on the features of a particular case. For example, when adverse parties have unequal resources, the party with relatively fewer resources may have a relative limit on access to the courts. Or when a party has a small damage claim, the cost of litigation may be greater than the damage claim, and so create a financial disincentive to sue. These practical barriers can sometimes create a limit on judicial review.
(a) Asymmetries in Resources
47. When adverse parties have unequal resources, the party with relatively fewer resources may have a relative limit on access to the courts. This may occur, for example, in employment litigation (in which an employee sues an employer), consumer litigation (in which a consumer sues a corporation), or even in individual rights litigation (in which an aggrieved party sues the government). Statutes or rules providing for fee- or cost-shifting, which permit a successful plaintiff to recoup litigation expenses from a defendant, can reduce any asymmetries in resources and therefore reduce any limits on access to the courts or to judicial review. State constitutions, however, have little to say about asymmetries in resources between adverse parties.
(b) Small Claims
48. Similarly, the economics of litigating a small claim can sometimes limit access to the courts and to judicial review. This is especially true in certain consumer litigation, where individual claims can be quite small, less than the cost of litigation, and therefore discourage access to the courts. States have adopted a range of solutions to reduce the limits to access to the courts in consumer claims and other small claims. For example, some states permit class actions; some provide for small claims courts; and some provide for specialized dispute-resolution mechanisms. As two scholars explained,
The specific solutions for small consumer claims disputes vary among legal cultures. The obvious example is class actions of multi-party actions, which are intended to assemble a group of claimants and thereby create procedural synergy. However, the palette of solutions is broader, including representation by consumer associations and the development of specialized alternative dispute resolution (ADR) mechanisms
50. Judicial review by independent courts is an essential bulwark against legislative and executive encroachment upon fundamental rights. That is why the constitutions of most or all progressive democracies explicitly provide for some form of judicial review. It is also why every major international human rights instrument protects a fundamental right to access to the courts for a judicial remedy for gross violations of human rights.
51. But despite the widespread constitutional provisions authorizing judicial review, there remain important limits. Most prominently, access to judicial review can be limited by jurisdictional requirements, like standing, ripeness, and mootness doctrines. Access to judicial review can also be limited by separation-of-powers principles, like the political question doctrine.
52. In addition to jurisdictional requirements, other barriers may also create limits on access to judicial review. For example, a person’s financial situation, language, or lack of information may create limits on access to judicial review. Moreover, asymmetries between parties in resources or information may create a limit on access; so, too, the size of a plaintiff’s claim may create a limit on access.
53. States with independent, Kelsen-type constitutional courts have fewer constitutional limits on judicial review than, say, the United States, with its apex court. This is because states with independent constitutional courts have hard-wired liberalized access to judicial review into their very constitutions, whereas the United States Supreme Court self-consciously limits its own power of judicial review in the name of the separation of powers.
54. Whether a state has an independent constitutional court or an apex courts, however, many states, recognizing the central role that judicial review plays in the protection of fundamental rights, have reduced or mitigated limits on access to judicial review through their constitutions, their judiciaries, and their practices. But the approaches are not uniform. Thus, it should not be surprising that, as it often seems, states with constitutions that grant the most generous set of fundamental rights also most generously provide access to judicial review. On the other hand, as it often seems, states with constitutions that grant relatively limited fundamental rights also create the most significant limits on access to judicial review.
55. If states with relatively greater limits on access to judicial review are to take fundamental rights seriously, they need to liberalize access to judicial review. This means that they should reduce the jurisdictional limits on access to judicial review. It also means that they should provide for accommodations for litigants who face financial barriers, language barriers, informational barriers, or other barriers that create limits on access to judicial review.
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