1) Introduction:
Judicial review means the higher level court review cases that involve laws and analyze. If those laws are in conflict with any other higher forms of law, court invalid those laws, such as constitution. It is a very important segment of the check and balance to give limitations to the authority of the legislative branch. Judicial review is important because it pays as a check on the other branches of Government. Judicial review is the power of the court to review the laws, policies, treaties or other executive orders which is relevant to cases and court found those unconstitutional.
Judicial review is a standard part of British Common Law[1][2] but now become a legal process.
Judicial review was first established in the case of Marbury VS Madison. This is the landmark of constitutional laws. In this case, Justice Maeshall held that the high court have the power to declare invalid acts of congress and executive actions that run afoul of the constitution. The main issue in this case was, whether the incoming President Thomas Jefferson had the power to withdraw William Marbury’s “midnight appointment”. In that case Chief Justice Marshall declared section 13 of the Judiciary act of 1789 unconstitutional. This was the first time the Supreme Court overturn federal legislation. It makes the power of judicial branch stronger
This Judicial Review is the support of any constitution to establish peace in the society. In this report the principals of Marbury vs. Madison case and the recognition in our constitution will be discussed.
2) Judicial Review:
Judicial Review is one of the main characteristics of any democratic government. It can be defined by two different but parallel legal systems-[3]
- Civil law
- Common Law
These two legal systems carried out two different theories and views about judicial review. Common law judges are seen as a source of law who are capable to create new laws and regulations and also have the power to reject those laws which are not important or not need to implement. They can vanish or stop those laws. And in the Civil law judges are seen as the implementer of laws. Means they can only apply those laws which are in the system but cannot create new laws of cannot reject any law. They don’t have that power.[4]
The idea of separation of power is another aspect of how a democratic government should organized. In the term of legislative supremacy, the idea of separation of power was first introduced in France but later it was institutionized by the supreme court in the united states in the Marbury vs. Madison case.
Judicial review gives ideas to government how to set up a proper legal system in the country to keep peace and democracy. [5] Today most of the courts allow reviewing the judicial systems. Generally judicial review carried out in the regular court but sometimes panel also created if needed. [6]
a) Why Judicial Review is important:
Judicial Review is important mainly because, without the judicial review, any constitution is like a piece of paper. Without this constitution would be nothing but some written documents only. The Constitution states that it is the supreme law of the country. to maintain the democracy and sovereignty, there has to be an authority to decide whether a particular law is constitutional or un constitutional. Whether any law is needed by the country or not. If not, then the legislative branch is free to pass any law which is constitutional and also can stop any law which is not necessary. They are the responsible to maintain the constitutionality.[7]judicial authority always has the power to interpreted laws. Constitution give judicial branch power to all over the cases under the constitution.
3) Marbury VS. Madison :
The Marbury case happened in the era when USA was still decontamination the balace of power between the three branches of the government and trying to resolve the differences. In Marbury vs. Madison, (1803) the Supreme Court reaffirmed that the constitution gave the power to the authority of judicial review.
a) Background :
Marbury vs Madison case is a landmark case in the United States law and in the history of law worldwide. It was formed in the base of the exercise of judicial review in the united stated under Article III[8] of the constitution. It was also the first time in western history that a court invalidated a law by declaring it unconstitutional[9]. The landmark decision helped to define the boundary between the constitutionally separate executive and judicial branches of the government.[10]
The case resulted from a petition to the Supreme Court by William Marbury who had been appointed by the president as the Justice of the peace[11] but whose commission was not subsequently delivered. Marbury made petitioned the Supreme Court to force the new secretary James Madison to deliver the documents. The court with Marshall, the chief justice, found that Madison’s refusal to deliver the commission was both illegal and remediable. The court stopped short of compelling Madison to handover Marbury’s commission, instead of holding the provision of the judiciary act of 1789[12] which enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional. Since this purported to extend the court’s original jurisdiction beyond that which article iii established. The petition was therefore denied.[13]
4) Principles if the case [14]:
The relevant parts are discussed here.
The first such principle is the “Original Rights” of people to establish a constitution for future. People have the right to establish their opinion and wishes for future. The exercise of this original right is a very great exertion. And as the authority which they precede is supreme and can seldom act they are designed to be permanent.
a) Next principle says that the power of each government are intended to be limited and delineated by the constitution and not assumed to be absolute or plenary. Here the power of legislation is defined and limited.
b) Justice Marshall plainly articulates the absurdity of allowing legislatures to over ride the constitution. Marshall considered the super legal character of a constitution to be especially evident when it is writer.
c) In those cases where court finds a law to be in contradiction with the constitution, the constitution rather than the ordinary law must be applied to the case. Here the court’s function is to decide what law to apply to a particular case, not to act as a super legislature over ruling laws.
d) The court is obligated to act constitutionally within its own jurisdiction. So it must not apply unconstitutional laws in its decision , just as the executive ought not to enforce a law which court find un constitutional.
e) It is declared that’ no tax or duty shall be laid on articles exported from any state’. The constitution declares that ‘no bill of attainder or ex post law shall be passed’.[15]
Thus the main terminology is to determine the constitution of an act of government. These judicial systems will support a government to make democracy and to keep peace in the society.
5) Judicial Review in the Constitution of Bangladesh:[16]
A constitution is meant to be permanent, but as all changing situations cannot be envisaged and amendment of the constitution may be necessary to adapt to the future developments[17]. Part VI of the constitution deals with judiciary[18]. In our constitution art 7 provides that all power in the republic shall be affected only under and by the authority of the constitution. The responsibility of seeing that no functionary of the state oversteps the limit of the power, of necessity, on the judiciary.[19]. The constitution vests the executive power of the Republic in the prime minister and the legislative power of the republic in the parliament. The constitution may omit any express provision conferring judicial power on the judiciary; even then the judicial power is exercisable by the judiciary[20].
The majority in Bangladesh v. A.K.M Jahangir held that any tribunal which is not invested with some part of the judicial power of the republic is outside the ambit of art 102(5)[21]. Art 102(5) refers to the administrative tribunals exercise the judicial power of the republic[22].
Art 94 provides for the supreme court of Bangladesh comprising two divisions- [23]
- The Appellate Division
- The High Court
6) Principles in Judicial Review of law:
Ours is a controlled constitution with entrenched provision which has circumscribed the power of parliament in making laws and has reposed on the Supreme Court the Constitutional responsibility to adjudicate upon the validity of laws[24]. In defense to the co- equal status of the legislature, follows certain principles in keeping with the necessity of harmonious working of the different organs of the state. These principles are stated below-
a) The Supreme Court :
When the constitutionality of a law is challenged, the curt is to begin with a presumption of constitutionality of the law[25] and the person challenging the validity of the law must show that the law is clearly unconstitutional[26].
b) A unitary, Independent, Sovereign Republic:
The constitution expresses itself on one of its basic structure in Article 1, “Bangladesh is a unitary, independent and sovereign Republic to be known as the People’s Republic of Bangladesh “.[27].
c) Separation of Power:
The constitution assigned to the legislature, executive and the judiciary clearly demarcated roles, each controlled by constitutional provisions and no one organ generally overlapping with the other.[28]. Article 55(2) had undergone some changes but it was restored in full by the Constitution. But there is no express vesting of judicial review in the Supreme Court in the Constitution[29].
d) Supremacy of the Constitution:
The doctrine in the United Kingdom is not available in a written Constitution which contains a constitutional system of restrains giving the superior court a power of judicial review. A written constitution is a mandate for limited government, each organ of the state limited and controlled by the jurisdiction conferred on it by the constitution and thereby obliged to act within the limitations imposed by the constitution[30].
e) Constitutional Limitations:
The constitution itself places limitations on the power of parliament to make ordinary laws. Article 65 vests parliament with ‘the legislative powers of the Republic’ but the vesting is ‘subject to the provisions of this Constitution’.
f) Limitations on the power of amendment of the constitution:
In amending the constitution parliament passes a law. The Appellate Division by a majority judgment answers the question in the negative. Relying on the preamble and article 7 of the constitution it declares the 8th amendment of the constitution[31].
g) Independence of the Judiciary :
“The constitution in its original form devised a scheme of completely independent judiciary. The independence of the judiciary can be measured by the provision a constitution contains in the matter of selection and appointment of judges, security of tenure, remuneration and other privileges, irrmoveability except on proved misconduct, independence in the exercise of judicial function the assurance of compliance with the judge’s decision and the substance of power and jurisdiction that it confers upon the judiciary”[32]
h) Independence in the exercise of judicial function:
Article 94(4) of the constitution provides, “subject to the provisions of this constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions”[33]
7) Power of Judicial Review:
The remedy of judicial review is different from the remedy of appeal; the appellate authority goes into the merit of the case either on a point of law or on points both of law and facts[34]. In judicial review the court is concerned with the question whether the act under review is lawful or unlawful. Courts exercise the power of judicial review on the basis of powers that can be validly exercised only within their true limits and a public functionary is not to be allowed to disobey the limits f the authority[35].
In our country s.9 of the code of civil procedure permits the civil court to try all suits of civil nature unless expressly or by necessary implications[36].
8) Judicial Activism in Bangladesh:
“The judges apply the law to facts in and describe about the term “Judicial restraint” and: Judicial activism”. The difference is that, ‘the judges take the law as it is and activist judges make up the law as they go along’. In Bangladesh judicial activisms does not find any configuration. It is not defined anywhere but is extensively talked about it in all section of the society, NGOs and bureaucrats. Statement of judiciary and its power is judicial activism. Many people label it is over active judiciary. In the south Asia, ‘the judiciary of India has created standard precedents of judicial activism for defending human rights, human distinction and establishing good governance’.[37]
9) The importance of Judicial Review in Bangladesh :
a) Opportunity for the public to participate:
Judicial review creates a right for individual to approach the court for relief over a breach of an act. It makes it possible to challenge a determination of the consent authority. Judicial review of environmental matters therefore allows the public an opportunity to participate in the environment planning and development process.[38]
b) Opportunities available for relief:
In Bangladesh there is currently no environmental legislation which gives the opportunity to a [person to bring proceedings for remedy or restrain the breach of an act. Notwithstanding, a person may seek judicial review under the civil procedure code 1908 or criminal procedure code 1898, though there has been little reference made to the opportunities available for relief under these cods[39]
10) Conclusion:
Good governance depends on harmonious functioning of the three organ of a state. Our past experience showed that at least the executive organ was largely responsible for upsetting the balance with the higher judiciary and the parliament remaining as silent spectators. Executive organ is largely responsible for upsetting the balance with the higher judiciary and the parliament remaining as silent spectators. Above discussion clearly shows that the present condition of the judiciary is not satisfactory. However, the independent and particular policy for judiciary is a must to overcome the situation. After all government must be committed to ensure the rule of law.[40]
In an act a provision may be made that rules and regulations, by laws etc made under it, ‘shall have effect as if enacted in the act’. In Bangladesh this question cannot arise that whether the provision exclude court’s power of judicial review. Because under the court constitution (article 102) doctrine of judicial review is accepted and treated as basic structure and essential features of the constitution. It cannot be taken by a statutory provision or even by a constitutional amendment
BIBLIOGRAPHY
1) Charles Arnold Baker, the companion of British History, English law, London:Loncross denholm Press, 2008,p 484
2) Massey.I.P. Administrative Law. fifth edition, eastern book company, page 229
3) Corrado , Michel ,louis,(2005) Comparative constitutional Law,
4) Gary Slapper & David Kelly, The English Legal system, 9 th edition, Published by Routledge.Cavendish
5) Revision workbook: Constitutional law, the machinery of government , old baily press, 3rd edition
6) Abdul Halim Chowdhury, Administrative law, page41-78, 6th edition, CCB Foundation
7) M.A.Salam, Constitutin of Bandlagesh, published bu Monjurul Rahman
8) Waliur Rahman & Mohammad Shahabuddin , Judicial training in the new Millennium
9) Thakker,C.K. Administrative Law,1992, E.B.C
10) Penny Derbishire, English Legal System, 6th edition
11) Green Hodge, English Legal System,7th edition
12) Packwani, Administrative law
13) Barrister Abdul Halim, Administrative law
14) Fridman, G.H.L.: Natural Justice, (1963), law Journal, p716
15) Retrieved from: www. Marbury vs. Madison. Retrieved May 24, 2011
16) Judicial review and the Supreme Court. Retrieved May 24,2011
17) Lipkin, Justin,Robert.The constitutional revolution: pragmatism and the role of Judicial Review in American Constitution. Pgs 370
18) Peter cane. An introduction to administrative law, part 1. Rules and principles of judicial review. Pg 446
19) Waliur rahman, Mohammad Shahabuddin, Judicial training in the new millennium
20) Mahmudul islam, constitutional law of bangladesh1st published, 1995, published by Bangladesh institute of law and international affairs, page 329 para 1.
21) Hinda v. the Queen, (1976) 1 all E.R p 353
22) Constitutional law of Bangladesh, mahmudul islam, chapter five, p361, para 1.
23) Constitutional law of Bangladesh, mahmudul islam, chapter five, p361, para 1.
24) Mujibur Rahman v. Bangladesh, 44 DLR (AD) 111, M Kamal J-BVangladesh Constitution: Trends ans issuses, p 16
25) Anwar hossain chowdhury v. Bangladesh, 1989 BLD (Spl) 1
26) Davis warwhouse co v bowles, 321 US 144: east Pakistan v Sirajul Haq, 19 DLR (SC) 281,343
27) Home tel & tel co v. los angels, p 211
28) Mustafa Kamal, Bangladesh Constitution: Trends and Issues, chapter ii, page 15, para 4
29) Jefferson and marshall, The supreme court: palladium of freedom(1962), from judicial review to judicial supremecy
30) H.W.R Wade, administrative vie law, 6 ed, p 280
31) Michel & T. Molden, Adiministrative Law
[1] Common law is the law established by the precedent from judicial decision established in the society.common law system give weight to the general laws.
[2] Charles Arnold Baker, the companion of British History, English law, London:Loncross denholm Press, 2008,p 484
[3] Massey.I.P. Administrative Law. fifth edition, eastern book company, page 229
[4] Corrado , Michel ,louis,(2005) Comparative constitutional Law,
[5] Judicial review, www.Wikipedia.org.com
[6] Thakker,C.K. Administrative Law,1992, E.B.C
[7] Fridman, G.H.L.: Natural Justice, (1963), law Journal, p716
[8] Article iii of the united states constitution establishes the judicial branch of the federal government. The judicial branch comprises the suprime court of the united states and the lower courts as created by congress.
[9]Retrieved from : www. Marbury vs. Madison. Retrived May 24, 2011
[10] Judicial review and the supreme court. Retrieved May 24,2011
[11] Justice of the peace is a judicial officer elected or appointed by means of a commission to keep the peace
[12] The judiciary act of 1789 was a landmark statute adopted on September 24 , 1789 in the first session of the first united states congress establishing the US federal judiciary.
[13] Retrieved from: case brief for Marbury vs Madison. The supreme court’s first great case.
[14] Lipkin, Justin,Robert.The constitutional revolution: pragmatism and the role of Judicial Review in American Constitution. Pgs 370
[15] Peter cane. An introduction to administrative law, part 1. Rules and principles of judicial review. Pg 446
[16] Waliur rahman, Mohammad Shahabuddin, Judicial training in the new millennium
[17] Mahmudul islam, constitutional law of bangladesh1st published, 1995,published by Bangladesh institute of law and international affairs, page 329 para 1.
[18] Constitutional law of Bangladesh, mahmudul islam, chapter five, p361, para 1.
[19] Constitutional law of Bangladesh, mahmudul islam, chapter five, p361, para 1.
[20] Hinda v. the Queen, (1976) 1 all E.R p 353
[21] 34 DLR (AD) 173, 205
[22] Mujibur Rahman v. Bangladesh, 44 DLR (AD) 111, M Kamal J-BVangladesh Constitution: Trends ans issuses, p 16
[23] Constitutional law of Bangladesh, mahmudul islam, chapter five, p362, para 1
[24] Anwar hossain chowdhury v. Bangladesh, 1989 BLD (Spl) 1
[25] Davis warwhouse co v bowles, 321 US 144: east Pakistan v Sirajul Haq, 19 DLR (SC) 281,343
[26] Home tel & tel co v. los angels, p 211
[27]Mustafa Kamal, Bangladesh Constitution: Trends and Issues, chapter ii, page 15, para 4
[28] Mustafa Kamal, Bangladesh Constitution: Trends and Issues, chapter ii, page 17, para 2
[29] Mustafa Kamal, Bangladesh Constitution: Trends and Issues, chapter ii, page 17, para 2
[30] [30] Mustafa Kamal, Bangladesh Constitution: Trends and Issues, p 19
[31] Jefferson and marshall, The supreme court: palladium of freedom(1962), from judicial review to judicial supremecy
[32] [32] Mustafa Kamal, Bangladesh Constitution: Trends and Issues, p 28, para 2
[33] [33] Mustafa Kamal, Bangladesh Constitution: Trends and Issues, page 32, para 3
[34] H.W.R Wade, administrative vie law, 6 ed, p 280
[35] Mahmudul Islam, Constitutional law of Bangladesh, 1995, page 374, power of judicial review, para 2
[36] The power of judicial review of a civil court is not subject to the precondition of exhaustion of efficacious remedy, but where a statue provides for a right or liability and also provides for a remedy, the remedy created by the statue is exclusive and the jurisdiction of the civil court to exercise the power of judicial review is impliedly barred because of the special remedy provide by the statue. See Jogesh Chandra v. Bangladesh, 30 DLR, 219
[37] Retrieved from: www.lawyersandjurists.com/resoutces/articles-and-assignments/judicial-activismin-bangladesh
[38] [38] Retrieved from: www.lawyersandjurists.com/resoutces/articles-and-assignments/judicial-activismin-bangladesh
[39] Retrieved from: www. Judicial review: the role of court and judiciary in the area of environmental protection and sustainable development.
[40] Michel & T. Molden, Adiministrative Law