Comparative analysis of judicial review powers
📘 What is Judicial Review?
Judicial review is the power of a court, particularly a constitutional or supreme court, to examine the actions of the legislative and executive branches and determine whether those actions are consistent with the constitution. If found unconstitutional, the court can invalidate or nullify them.
There are two main types of judicial review:
Concrete Judicial Review: Initiated in the context of a real case or dispute.
Abstract Judicial Review: Allows courts (especially constitutional courts) to review laws without the need for a specific dispute.
📚 Comparative Analysis with Case Law
🇺🇸 1. United States – Marbury v. Madison (1803)
Court: U.S. Supreme Court
Facts:
William Marbury had been appointed Justice of the Peace by President Adams, but his commission was not delivered before Jefferson took office. Marbury petitioned the Supreme Court to compel Secretary of State Madison to deliver the documents.
Ruling:
The Court, led by Chief Justice John Marshall, held that Marbury had a right to the commission but the Court could not enforce it because the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue such orders was unconstitutional.
Significance:
Established judicial review in the U.S.
Declared that "It is emphatically the province and duty of the judicial department to say what the law is."
Set the foundation for American constitutional jurisprudence.
🇮🇳 2. India – Kesavananda Bharati v. State of Kerala (1973)
Court: Supreme Court of India
Facts:
Kesavananda Bharati, a religious head of a Hindu Mutt, challenged land reform laws that impacted property rights under the Kerala Land Reforms Act. The case raised broader issues about the power of Parliament to amend the Constitution.
Ruling:
The Supreme Court ruled that Parliament could amend the Constitution, but could not alter its "basic structure."
Significance:
Introduced the Basic Structure Doctrine.
Judicial review extended to constitutional amendments.
Protected fundamental features like democracy, secularism, rule of law, and separation of powers.
🇬🇧 3. United Kingdom – R (Miller) v. Secretary of State for Exiting the European Union (2017)
Court: UK Supreme Court
Facts:
The UK government argued that it could trigger Article 50 (to leave the EU) using royal prerogative powers. Claimants argued that only Parliament could initiate such a major constitutional change.
Ruling:
The Supreme Court held that the government could not trigger Article 50 without an Act of Parliament.
Significance:
Affirmed parliamentary sovereignty and the constitutional limits of executive power.
Reiterated that courts can review whether constitutional processes have been followed.
Though the UK has no written constitution, judicial review is active and expanding, particularly in the area of public law.
🇵🇰 4. Pakistan – Sindh High Court Bar Association v. Federation of Pakistan (2009)
Court: Supreme Court of Pakistan
Facts:
This case challenged the actions of General Pervez Musharraf, who declared a state of emergency in 2007 and suspended the Constitution.
Ruling:
The Court held that the emergency and Provisional Constitutional Order (PCO) were unconstitutional, and declared that judges who took oath under the PCO did so unlawfully.
Significance:
Strong assertion of judicial independence.
Reaffirmed judicial review over unconstitutional executive actions.
Marked the judiciary's return to constitutional supremacy after periods of military rule.
🇿🇦 5. South Africa – Economic Freedom Fighters v. Speaker of the National Assembly (2016)
Court: Constitutional Court of South Africa
Facts:
The case involved the President (Jacob Zuma) failing to comply with the Public Protector’s recommendations to pay back state funds used to renovate his private residence.
Ruling:
The Court found that the President violated the Constitution, and Parliament failed to hold him accountable.
Significance:
Demonstrated robust judicial review powers.
Courts in South Africa can hold both the executive and legislature accountable.
Embodies transformative constitutionalism, where courts actively promote justice and accountability.
🇩🇪 6. Germany – Lüth Case (1958)
Court: Federal Constitutional Court (Bundesverfassungsgericht)
Facts:
Lüth, a journalist, called for a boycott of a film made by a Nazi-affiliated producer. The producer sued Lüth under civil law, and the lower court ruled against him.
Ruling:
The Constitutional Court reversed the decision, holding that fundamental rights have indirect horizontal effect and that civil laws must be interpreted in line with the Basic Law (Grundgesetz).
Significance:
Expanded judicial review to civil law relations.
Showed how constitutional values permeate all aspects of legal life.
Germany’s judicial review is centralized and only the Constitutional Court can declare laws unconstitutional.
🔍 Key Comparative Points
| Feature | USA | India | UK | Pakistan | South Africa | Germany |
|---|---|---|---|---|---|---|
| Type of Constitution | Written | Written | Unwritten | Written | Written | Written |
| Judicial Review Origin | Marbury v. Madison | Explicit and expanded | Common law tradition | Mix of law and military intervention | Explicit in Constitution | Constitutional Court |
| Review of Amendments? | No | Yes (Basic Structure) | N/A | Yes | Yes | Yes |
| Review of Executive Acts? | Yes | Yes | Yes | Yes | Yes | Yes |
| Enforcement Power | Strong | Strong | Political limits | Strong (but politicized) | Strong | Strong |
🧾 Conclusion
Judicial review plays a central role in modern constitutional democracies, though its scope and implementation vary widely:
In the U.S. and India, courts have asserted strong powers to strike down unconstitutional laws.
In the UK, courts use review to check executive overreach within the framework of parliamentary supremacy.
In South Africa and Germany, judicial review integrates fundamental rights deeply into all areas of law.
In Pakistan, judicial review has oscillated between independence and political influence.
These landmark cases underscore how judicial review is not only a legal tool but a cornerstone of constitutionalism and democracy across systems.
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