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Chapter 1Judicial Review from different standpoints

Introduction

Law prevails everywhere and everything; it is all-embracing and permits every

sphere of life and society. Knowledge of law, both professional and general,

therefore, is indispensable for human development. Law which is created based

on social demand and human need is an imperative category, and ought to rule.

Everywhere it ought to be the rule of law, law as a body of norms regulating

human and institutional behaviour and their interrelationships. General

perception of the concept of rule of law brings to one’s imagination two elegant

categories of personalities for example judge and lawyer, who form the core of

justice system. When law is abused, or law is misapplied, or law is not properly

made, it is the task of the justice system that means the judiciary to intervene to

ensure that law prevails, and only law rules.

Bangladesh is unitary independent sovereign, Republic to be known as the

peoples Republic of Bangladesh and by nature, man is rational as well as animal

being and they live together in the society depending upon each other to fulfil

their needs for survival. As Social beings, men express their nature by creating

and recreating an organization which guides and control their behaviour in

many ways.

Judicial review of administrative action is perhaps the most important

development in the field of public law in the second half of this century. This is

the most potent weapon in the hands of the judiciary for the maintenance of the

rule of law.1

1 C.K. Takwani, Lectures on Administrative Law; p.237

Chapter 1.1

Judicial Review

Generally Judicial Review means the power of the courts to review the legislative

and executive action and determine their validity. Courts exercise such power on

the basis that powers can be validly exercised only within their true limits and a

public functionary is not to be allowed to transgress the limits of his authority

conferred by the constitution or the law.

According to Chief Justice John Marshall :

“Judicial Review is the power given to Supreme Court justices in which a judge

has the power to reason whether a law is unconstitutional or not. Chief Justice

John Marshall initiated the Supreme Court’s right to translate the Constitution in

1803 following the case of Marbury vs. Madison, in which he declared the

Supreme Court as the sole interpreters of Constitutional law. This is one of the

sole purposes of the Supreme Court of the United States. Many Historical

thinkers would find some difficulty in imagining a government set up to limit the

power of itself, but others would argue that this form of government best works

for the people, and not against them. The treatment of the Constitution by the

Supreme Court as a “living” document that is able to be translated differently

over time for the good of the people has as many sceptics as it does supporters.”

Machiavelli would also totally disagree with the idea of having anyone make

decisions about laws because they are morally incorrect. And, the Supreme

Court’s protection of the people of the United States, and its Constitution is also a

necessity in running a truly virtuous and successful government that

concentrates on the rights of the individual, rather than the people as a whole.

Machiavelli found the most successful government to be one that ruled on the

basis of “realism” not “idealism”. We today see the Supreme Court as a collection

of the most “enlightened” thinkers of our day. Locke felt that for a government to

be successful in preserving the rights of the individual citizen, it must

concentrate on protecting the “Life and Liberty” of each citizen. These beliefs

have

Molded one of the most successful political states in modern History. They only

believed in the truth, and justice that government is supposed to protect its

people with. He felt that a government should be run with the sole intention of

forcing the people to be obedient, and for the individual virtues of the people to

be a non-factor in any political decisions made by the ruler of the state. Plato

knew that within any political State their would be corruption, to stop the

corruption Plato felt that the philosopher kings would best rule because they

would not indulge themselves in a corrupt society. The Constitution of the

United States is the ideal document in Locke’s mind.2

One of the earliest political philosophers Plato would find our present day

governmental setup of the Supreme Court to be the ideal group to deal with the

United States’ situation. Others thought that one sole dictator or King could best

run a successful government. Some believed that the people would best run a

government.

A more modern philosopher such as John Locke would find the Supreme Court

and its power of Judicial Review to be one of the most important characteristics

of the United States’ setup of Democracy. Locke believed that all people should

be treated as equals, and to not treat each other equally would interfere on an

individual’s right to “self Preservation”

While reviewing the validity of the authority the flowing question are to be

inquired and determined

a. has exceeded its power?

b. Committed an error of law?

c. abused its power?

2 Law of writes in Bangladesh Ansar Ali Khan. P-3

d. failed to consider all relevant factors or taken into consideration irrelevant

factors?

e. reached a decision which no reasonable authority would have reached?

f. failed to observe the statutory procedural requirements and the common

law principles of natural justice or procedural fairness?3

Chapter 2

Judicial review in other countries

The Supreme Court’s principle power is judicial review the right of the Court to

declare laws unconstitutional. This authority is not expressly stated in the

Constitution. The Supreme Court has exercised judicial review since 1803, when

Chief Justice John Marshall first announced it in Marbury v. Madison. Marshall

deduced the necessity of such a power from the purpose and existence of the

Constitution. He reasoned that judicial review was necessary to implement the

Constitution’s substantive and procedural limits on the government. Judicial

review is both a powerful and controversial tool because it allows the Supreme

Court to have the ultimate word on what the Constitution means. These permits

the Court justices are appointed rather than elected—to overrule decisions

already made by Congress and legislatures throughout the country.

Judicial Review and J. Marshal:

As the fourth Supreme Court (1803) Chief justice of the United States of America,

John Marshall created a legacy that has endured nearly two hundred years.

While writing the majority opinion for the Supreme Court case of Marbury v.

Madison in 1803, he single-handedly changed the course of our judicial system.

He did this by granting the judicial branch the power to determine a law

unconstitutional, otherwise known as judicial review. The question at hand,

then, is to explore how this one ruling on a seemingly insignificant case became a

3 32 DLR 114

worthy landmark on the timeline of United States history. Just as any decision, at

any specific point in time, Marshall did not intentionally choose to eradicate the

norm and clear a new path for the future. He was neither attempting to establish

judicial supremacy nor rewrite the law. Nevertheless, this seemingly ingenious

decision was clearly groundbreaking in that it was the first instance on which

the Supreme Court officially established its power over legislation, and has since

been viewed as the basis for judicial authority. However, John Marshall’s ruling

in the case of Marbury v. Madison was undoubtedly the only logical choice, and

was based on three important factors:

‘The judicial branch had neither the power of force, which belonged to the

executive branch, nor the will of the people, which belonged to the legislative

branch.

One way to explain a specific moment in time is to relate it to other events in

history. Several months later, the debate changed from whether or not to create

this “Council of Revision,” to who should belong on it. By basing his opinion on

previous models of judicial review, Marshall used the powerful tool of precedent

to help further his political party. John Marshall created an outcome that best

benefited his own personal and political party’s interests, by establishing a check

on the legislative branch and by enforcing popular sovereignty as laid out in the

Constitution. He believed a strong central government and popular sovereignty

were two crucial elements in the success of a nation. John Marshall did not

invent judicial review, yet crafted a clever way to declare its credibility. Both

Federalists and anti-Federalists reached an understanding that judicial review

was necessary. This proves that some delegates already believed the powers of

judicial review were assumed well before John Marshall was Chief Justice. The

central argument between the delegates was whether or not judges should be

allowed to be participants on the council.

At the time preceding the Marbury v. Madison As a staunch Federalist, Marshall

viewed the Constitution as the fundamental law of the land. The federal courts

were under a continued attack by newly appointed President Jefferson and the

Republican Party who wished to bring the courts under the command of the

executive branch. If Marshall had not established the power of judicial review

through this case, he would have missed a crucial opportunity to help empower

the Federalists.

Marbury v. Madison:

The Marbury vs. Madison case resulted in the most important Supreme Court

decision in history. The court’s ruling established the power of judicial review,

solidified the Constitutional system of checks and balances, strengthened the

power of the federal government, and made the Judiciary an equal partner with

the Legislative and Executive branches of government. In the Election, Thomas

Jefferson and his anti-federalist Republican Party defeated the incumbent John

Adams and the Federalist Party. The Republicans also in Congress In an effort to

keep at least one branch of the government under Federalist control Congress

passed the Judiciary Act of 1801 in a lame-duck session. The bill reformed a

1789 statute and created many new judgeships. Adams nominated judges and

the Senate confirmed them. Adams then stayed up until long after midnight on

March3, 1801 his last full day in office, signing commissions that put fifty-nine

loyal Federalists in office. These were the so-called “midnight judges.” In the final

weeks before Jefferson took office, John Marshall was Secretary of State and

Chief Justice simultaneously.

Even with Marshall’s suppression of this states’ right of review. Even at the time

that the case was decided, it was insignificant because Marbury’s term as justice

would have the time the Court was ready to consider it. Four of the

uncommissioned justices of the peace, including William Marbury, sought a writ

of mandamus, or order directing Madison to deliver the commissions. The idea

came up as the nullification controversy of Calhoun and ultimately was a cause

of the Civil War. Next, Congress, using its authority under the Constitution to

make “regulations” for the federal court, shut down the Supreme Court for a

year. If he denied the request, the Supreme Court would be left a “helpless victim

of presidential or congressional whim”. As these facts demonstrate, Marbury had

incalculable effects on the Constitution and government. Marshall had forever

changed the task of the Supreme Court. The system of separation of powers

implied that each branch, “as Madison remarked, had’ the necessary

constitutional means, and personal motives, to resist the encroachments of the

others. Outraged by Adams’ appointments, Jefferson ordered Madison not to

deliver the commissions.4

The first would have based judicial review on the supremacy in the Constitution.

Judicial review completed the system of checks and balances that was a vital

component of the Constitution. However, this did not prevent Marshall from

using the case to suit his purposes. However, Marshall realized that such an

argument would also serve to emphasize the other branches’ checks on the

Court and, more importantly, would have made all branches legitimate

interpreters of the Constitution.

Judicial review in English Law:

Judicial review is a procedure in English Administrative Law by which English

courts supervise public authorities in the exercise of their powers.

A person who feels that a decision of a public authority, such as a government

minister, the local council or a statutory tribunal has violated his or her rights,

may apply to the High Court for judicial review of the decision and have it set

aside (quashed) and possibly obtain damages. A court may also make mandatory

orders or injunctions to compel the authority to do its duty or to stop it from

acting illegally.

Unlike the United States and some other jurisdictions, English law does not

know judicial review of primary legislation (laws passed by Parliament), save in

a few cases where primary legislation is contrary to EU law and the European

4 43 DLR 131

Convention of Human Rights. A person wronged by an Act of Parliament

therefore cannot apply for judicial review unless this is the case.

Constitutional position

The English constitutional theory as expounded by A.V. Dicey does not recognize

a separate system of administrative courts that would review the decisions of

public bodies (as in France, Germany and many other European countries).

Instead, it is considered that the government should be subject to the

jurisdiction of ordinary Common Law courts.

At the same time, the doctrine of Parliamentary sovereignty does not allow for

the judicial review of primary legislation (Acts of Parliament). This limits judicial

review in English law to the decisions of public bodies and secondary

(delegated) legislation, against which ordinary common law remedies as well as

special “prerogative orders” are available in certain circumstances.

The constitutional theory of judicial review has long been dominated by the

doctrine of ultra vires, under which a decision of a public authority can only be

set aside if it exceeds the powers granted to it by Parliament. The role of the

courts was seen as enforcing the “will of Parliament” in accordance with the

doctrine of Parliamentary sovereignty. However, the doctrine has been widely

interpreted to include errors of law and of fact and the courts have also declared

the decisions taken under the Royal Prerogative to be amenable to judicial

review. Therefore it seems that today the constitutional position of judicial

review is dictated by the need to prevent the abuse of power by the executive as

well as to protect individual rights.

Chapter 3

The importance of judicial review in Bangladesh

Opportunity for the public to participate:

Judicial review creates a right for individuals 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 environmental planning and

development process.

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 Codes.

Procedural requirements:

Under the Civil Procedure Rules a claim (application) for judicial review will

only be admissible if permission (leave) for judicial review is obtained from the

High Court, which has supervisory jurisdiction over public authorities and

tribunals. Permission may be refused if one of the following conditions is not

satisfied:

The application must be made promptly and in any event within three months

from the date when the grievance arose. Note that legislation can impose shorter

time limits while a court may hold that an application made in less than three

months may still be not prompt enough.

The applicant must have sufficient interest in a matter to which the application

relates. This requirement is known as the requirement of standing.

The application must be concerned with a public law matter, i.e. the action must

be based on some rule of public law, not purely tort or contract.

However, the Court will not necessarily refuse permission if one of the above

conditions is in doubt. It may, in its discretion, to examine all the circumstances

of the case and see if the substantive grounds for judicial review are serious

enough. Delay or lack of sufficient interest can also lead to the court refusing to

grant a remedy after it had considered the case on the merits.5

Amenability to judicial review:

The decision complained of must have been taken by a public body, i.e. a body

established by statute or otherwise exercising a public function. In R v Panel for

Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held

that a privately established panel was amenable to judicial review because it in

fact operated as an integral part of a governmental framework for regulating

Mergers and Takeover, while those affected had no choice but to submit to its

jurisdiction.

Ouster clauses:

Sometimes the legislator may want to exclude the powers of the court to review

administrative decision, making them ‘final’, ‘binding’ and not apellable.

However, the courts have consistently held that none but the clearest words can

exclude judicial review. When the Government wanted to introduce a new

Asylum and Immigration Act containing such clear words, members of the

judiciary protested to the extent of saying that they will not accept even such an

exclusion)181 The Government withdrew the proposal.

The courts however do uphold shorter time limits on applications for judicial

review.

The decision is taken by the wrong person (unlawful sub-delegation)

If the law empowers a particular authority, e.g. a minister, to take certain

decisions, the Minister cannot sub delegate this power to another authority, e.g.

an executive officer or a committee. This differs from a routine job not involving

much discretion being done by civil servants in the Minister’s name, which is not

considered delegation.

The powers used for the purpose different from the one envisaged by the law

5 The Daily Star, page-9 June-2006

under which they were granted.

A good example of this is the case of R v Secretary of State for Foreign Affairs.

The World Development Movement.S 1 of the Overseas Development and Co-

operation Act 1980 empowered the Secretary of State for Foreign Affairs to

assign funds for development aid. The Secretary assigned the funds for a project

to construct a power station on the Pergau River in Malaysia. The House of Lords

held that this was not the purpose envisaged by the enabling statute and the

Minister therefore exceeded his powers. A similar principle exists in many

continental legal systems and is known by the French name of denouncement

dupouvoir.

Error of law or error of fact:

The court will quash a decision where the authority has misunderstood a legal

term or incorrectly evaluated a fact that is essential for deciding whether or not

it has certain powers. However, where a term to be evaluated by the authority so

broad and vague that reasonable people may reasonably disagree about its

meaning, it is generally for the authority to evaluate its meaning. So, in R v

Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority

had to provide homeless persons with accommodation. The applicants were a

married couple, who lived with her two children in one room and applied to the

local authority for aid. The local authority refused aid because it considered that

the Pulhofers were not homeless and the House of Lords upheld this decision

because whether the applicants had accommodation was a question of fact for

the authority to determine.

Ignoring relevant considerations or taking irrelevant considerations into

account

An example of this can be seen in Wheeler v Leicester City Council, where the

City Council banned a rugby club from using its ground because three of the

club’s members went on a tour in South Africa at the time of apartheid. In R v

Somerset County Council v Fewings the local authority decided to ban stag

hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture,

Fisheries and Food, the Minister refused to mount an inquiry into a certain

matter because he was afraid of bad publicity. In all these cases, the authorities

have based their decisions on considerations, which were not relevant to their

decision making power and have acted unreasonably (this may also be qualified

as having used their powers for an improper purpose).

Fettering discretion:

An authority will be acting unreasonably were it refuses to hear applications or

takes certain decisions without taking individual circumstances into account by

reference to a certain policy. When an authority was given discretion, it cannot

bind itself as to the way in which this discretion will be exercised either by

internal policies or obligations to others. Even though an authority may establish

internal guidelines, it should be prepared to make exceptions on the basis of

every individual case.

Irrationality:

Under Lord Diplock’s classification, a decision is irrational if it is “so outrageous

in its defiance of logic or of accepted moral standards that no sensible person

who had applied his mind to the question could have arrived at it.” This standard

is also known as Wednesbury unreasonableness, after the decision in Associated

Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first

imposed.

Unlike illegality and procedural impropriety, the courts under this head look at

the merits of the decision, rather than at the procedure by which it was arrived

at or the legal basis on which it was founded. The question to ask is whether the

decision “makes sense”. In many circumstances listed under “illegality”, the

decision may also be considered irrational.

Proportionality:

Proportionality is a requirement that a decision is proportionate to the aim that

it seeks to achieve. E.g. an order to forbid a protest march on the grounds of

public safety should not be made if there is an alternative way of protecting

public safety, e.g. by assigning an alternative route for the march. Proportionality

exists as a ground for setting aside administrative decisions in most continental

legal systems and is recognised in England in cases where issues of EC law and

ECHR rights are involved. However, it is not as yet a separate ground of judicial

review, although Lord Diplock has alluded to the possibility of it being

recognised as such in the future. At present, lack of proportionality may be used

as an argument for a decision being irrational.

Procedural impropriety:

A decision suffers from procedural impropriety if in the process of its making the

procedures prescribed by statute have not been followed or if the ‘rules of

natural justice’ have not been adhered to.

Statutory procedures:

An Act of Parliament may subject the making of a certain decision to a

procedure, such as the holding of a public hearing or inquiry, or a consultation

with an external adviser. Some decisions may be subject to approval by a higher

body. Courts distinguish between “mandatory” requirements and “directory”

requirements. A breach of mandatory procedural requirements will lead to a

decision being set aside for procedural impropriety.

Breach of Natural Justice:

The rules of natural justice require that the decision maker approaches the

decision making process with ‘fairness’. What is fair in relation to a particular

case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625

“the rules of natural justice are not engraved on tablets of stone.” the below are

some examples of what the rules of natural justice require:

The rule against bias:

The first basic rule of natural justice is that nobody may be a judge in his own

case. Any person that makes a judicial decision - and this includes e.g. a decision

of a public authority on a request for a license - must not have any personal

interest in the outcome of the decision. If such interest is present, the decision

maker must be disqualified even if no actual bias can be shown, i.e. it is not

demonstrated that the interest has influenced the decision. The test as to

whether the decision should be set aside is whether “a fair-minded and informed

observer would conclude that there was a real possibility [of bias]”.

The right to a fair hearing:

Whether or not a person was given a fair hearing of his case will depend on the

circumstances and the type of the decision to be made. The minimum

requirement is that the person gets the chance to present his case. If the

applicant has certain legitimate expectations, for example to have his licence

renewed, the rules of natural justice may also require that he is given an oral

hearing and that his request may not be rejected without giving reasons.Where

the decision is judicial in nature, for example a dismissal of an official in

punishment for improper conduct. the rules of natural justice require a hearing

and the person question must know the case against him and be able to examine

and object to the evidence.

Duty to give reason:

Unlike many other legal systems, English administrative law does not recognise

a general duty to give reasons for a decision of a public authority. A duty to give

reasons may be imposed by statute. Where it is not, Common Law may imply

such a duty and the courts do so particularly with regard to judicial and quasi-

judicial decisions.

The remedies traditionally available in judicial review are the so called

prerogative orders: certiorari, mandamus and prohibition. In the language of the

new Civil Procedure Rules, these orders are now known respectively as the

quashing order, the mandatory order and the prohibiting order. A claimant [or

judicial review may also seek an injunction, a declaration and/or damages.

A declaration declaring a decision void is equivalent to the quashing order, and

is usually used to declare a statute or a regulation incompatible with a higher

norm of law, such as the European Convention of Human Rights or EC law.

The remedies of declaration, injunction and damages are discretionary remedies.

Scope and components of judicial review:

Broadly speaking, judicial review in India comprises of three aspects: judicial

review of legislative action, judicial review of judicial decisions and judicial

review of administrative action. The judges of the superior courts have been

entrusted with the task of upholding the Constitution and to this end, have been

conferred the power to interpret it. It is they who have to ensure that the

balance of power envisaged by the Constitution is maintained and that the

legislature and the executive do not, in the discharge of functions, transgress

constitutional limitations. Thus, judicial review is a highly complex and

developing subject. It has its roots long back and its scope and extent varies from

case to case. It is considered to be the basic feature of the Constitution. The court

in its exercise of its power of judicial review would zealously guard the human

rights, fundamental rights and the citizens’ rights of life and liberty as also many

non-statutory powers of governmental bodies as regards their control over

property and assets of various kinds, which could be expended on building,

hospitals, roads and the like, or overseas aid, or compensating victims of crime.

Limits of Judicial Review:

Judicial review has certain inherent limitations. It is suited more for adjudication

of disputes than for performing administrative functions. It is for the executive

to administer the law and the function of the judiciary is to ensure that the

Government carries out its duty in accordance with the provisions of the

Constitution.6 It is true that the courts have wide powers of judicial review of

6 C.K. Takwani, Lectures on Administrative Law, 3rd Edition P.239

Constitutional and statutory provisions. These powers, however, must be

exercised with great caution and self-control. The courts should not step out of

the limits of their legitimate powers of judicial review. The parameters of judicial

review of Constitutional provisions and statutory provisions are totally different.

In J.P.Bansal v State of Rajasthan the Supreme Court observed: “It is true that this

court in interpreting the Constitution enjoys a freedom which is not available in

interpreting a statute. It endangers continued public interest in the impartiality

of the judiciary, which is essential to the continuance of rule of law, if judges,

under guise of interpretation, provide their own preferred amendments to

statutes which experience of their operation has shown to have had

consequences that members of the court before whom the matters come

consider to be injurious to public interest. Where the words are clear, there is no

obscurity, there is no ambiguity and the intention of the legislature is clearly

conveyed, there is no scope for the court to innovate or to take upon itself the

task of amending or altering the statutory provisions. In that situation the judge

should not proclaim that they are playing the role of lawmaker merely for an

exhibition of judicial valour. They have to remember that there is a line, though

thin, which separates adjudication from legislation. That line should not be

crossed or erased. This can be vouchsafed by an alert recognition of the

necessity not to cross it and instinctive, as well as trained reluctance to do so”.

If case the court forgets to appreciate this judicial wisdom, it would undermine

the constitutional mandate and will disturb the equilibrium between the three

sovereign organs of the Constitution. In State (Govt of NCT of Delhi) v Prem Raj

the Supreme Court took a serious note of this disturbing exercise when the High

Court commuted the sentence by transgressing its limits. The court observed:

“The power of commutation exclusively vests with the appropriate government.

The appropriate government means the Central government in cases where the

sentence or order relates to a matter to which the executive power of the Union

extends, and the state government in other cases. Thus, the order of the high

Court is set aside”.Similarly, in Syed LA. Haqshbandi v State of J&K the Supreme

Court observes:

“Judicial review is permissible only to the extent of finding whether the process

in reaching the decision has been observed correctly and not the decision itself,

as such. Critical or independent analysis or appraisal of the materials by the

court exercising powers of judicial review unlike the case of an appellate court

would neither be permissible nor conducive to the interests of either the officer

concerned or the system and institutions. Grievances must be sufficiently

substantiated to have firm or concrete basis on properly established facts and

further proved to be well justified in law, for being countenanced by the court in

exercise of its powers of judicial review. Unless the exercise of power is shown

to violate any other provision of the Constitution of India or any of the statutory

rules, the same cannot be challenged by making it a justifiable issue before the

court”.

The courts are further required not to interfere in policy matters and political

questions unless it is absolutely essential to do so. Even then also the courts can

interfere on selective grounds only. In P.U.C.L v U.O.I the Supreme Court

observed: “This court cannot go into and examine the need of Prevention of

Terrorism Act. It is a matter of policy. Once legislation is passed, the government

has an obligation to exercise all available options to prevent terrorism within the

bounds of the Constitution. Moreover, mere possibility of abuse cannot be

counted as a ground for denying the vesting of powers or for declaring a statute

unconstitutional”.

Similarly, in U.O.I. v International Trading Co the Supreme Court observed:

“Article 14 of the Constitution applies also to matters of government policy and if

the policy or any action of the government, even in contractual matters, fails to

satisfy the test of reasonableness, it would be unconstitutional. While the

discretion to change the policy in exercise of the executive power, when not

trammelled by any statute or rule is wide enough, ‘what is imperative and

implicit in terms of Article 14 is that a change in policy must be made fairly and

should not give the impression that it was so done arbitrarily or by any other

ulterior criteria. The wide sweep of Article 14 and the requirement of every state

action qualifying for its validity on this touchstone, irrespective of the field of

activity of the state, is an accepted tenet. The basic requirement of Article 14 is

fairness in action by the state, and non-arbitrariness in essence and substance is

the heartbeat of fair play. Every state action must be informed by reason and it

follows that an act uninformed by reason is per se arbitrary”.

Similarly, where a political question is involved, the courts normally should not

interfere. It is also equally settled law that the court should not shrink its duty

from performing its functions merely because it has political Thus, merely

because the question has a political complexion that by itself is no ground why

the court should shrink from performing its duty under the constitution if it

raises an issue of constitutional determination. Every constitutional question

concerns the allocation and exercise of governmental power and no

constitutional question can, therefore, fail to be political. As large as a question

arises whether an authority under the Constitution has acted within the limits of

its power or exceeded it, it can certainly be decided by the court. Indeed it would

be its constitutional obligation to do so.

Although Malaysia inherited the political system of British India based on the

Westminster system which made no provision for judicial review, the Federal

Constitution of Malaysia instituted a system based on that of the India which was

in turn influenced by other constitutions including that of the United States.

Judges are empowered to declare laws or executive actions ultra vires if they

clashed with the Constitution and/or the parent legislation. However, this power

was curbed after the 1988 Malaysian constitutional crisis by then Prime Minister

Mahathir bin Mohammad through amendments to the Federal Constitution. A

particularly significant amendment was the removal of the judicial power and

subjecting the judiciary to such jurisdiction and powers as may be conferred by

or under federal law) The merits of detentions made under the Internal Security

Act are also not subject to judicial review, but the procedures are.

Chapter 4

The Constitution and Change

The constitution is a flexible document that can meet changing conditions over

time. Two basic constitutional principles that allow the government to adapt to

changes in the United States are the most important power of the federal courts

is the right to judicial review.

This enables the courts to hear cases involving the application and

interpretation of law. Laws that are judged to be against the Constitution are

said to be unconstitutional and void. Judicial review backs up the statement that

the Constitution is the “supreme law of the land”. All federal and most state

courts may exercise judicial review; however, the final decision in interpreting

the Constitution is the Supreme Court.

He said that the elastic clause meant that Congress could only pass “necessary”

laws. The constitution did not give the Supreme Court such powers, therefore,

making the Judiciary Act unconstitutional. A National bank would help carry out

the powers to lay taxes, borrow money, and regulate commerce. Marbury bought

a lawsuit asking for a court order that would force the new Secretary of State,

James Madison, to give him the commission. It allows the government to stretch

its powers. The Supreme Court came up with a decision; Marbury did have a

right to his job pay, however, the Supreme Court could not issue Madison to

deliver it. Some of the official commissions for the new appointments were

handwritten on Adam’s last night as president, and had not been seen when the

new president, Thomas Jefferson, was sworn in on March 4, 1801. This view of

the elastic clause is known as “loose construction”. Article 1, Section 8, Clause 18

of the Constitution states that Congress can make all laws “necessary and

proper” for carrying out the tasks listed in the constitution. View strengthened

the judiciary branch above the other two branches of government. He then

signed the bill to establish the first national bank of the United States.

He disagreed with the idea of a national bank to limit the government’s powers.

Jefferson declared that Adam’s “midnight judges” would not be sent their

commissions.

The Judicial Branch in Regard to Separation of Powers the Doctrine of

Separation of powers is that political power should be divided among several

bodies as a precaution against tyranny. The ideal is opposed the absolute

sovereignty of the Crown, Parliament, or any other body. The blueprint for

United States’ separation of powers is laid out in the U.S. Constitution and

expanded upon in the Federalist Papers. The checks and balances of the US

government involve the horizontal separation of powers among the executive

(the Presidency), the legislature (the two houses of Congress themselves

arranged to check and balance one another), and the judiciary (the federal

courts). There is also a vertical separation between the federal government and

the states. Defenders of separation of powers insist that it is needed against

tyranny, including the tyranny. of the majority. Its opponents argue that

sovereignty must lie somewhere, and that it is better, and arguably more

democratic; to ensure that it always lies within the same body. The United States

wanted to instate a government structured in such a way that each branch was

separate but equal.

The Constitution also requires the President to give Information, from time to

time; to Congress on the State of the Union. “Checks and balances and separation

of powers are concerned with checking both minority and majority “factions”

that spring from man’s self-interest. It permits the court to define whatever

powers of self-defence the other branches have against the judiciary. In order

constrain both majority as well as minority, the founders favoured a less

efficient government checked and balanced against it because it seemed safer

than the risk of tyranny in a more efficient system. More applicable to this

discussion, however, are the powers in that the Constitution lays out concerning

the making of specific types of laws.

Following the listed powers of the legislative branch, Article II tackles the area

concerning the executive branch, or the Presidency. Article I addresses the

powers of the legislative branch that the judicial branch has often found itself in

the grey area of sovereignty. More relevant however, are the following segments

(Sec. The theoretical reasoning behind the need for separation of powers is laid

out by Publius (Jefferson and Madison) primarily in Federalist Papers # 49 —51.

The President becomes, as he was intended, a major player in foreign affairs.

This power to interpret the law becomes the determining factor in the most

powerful branch of government. “The prime purpose was to protect vested

interests by such curbs upon the masses as checks and balances, especially

judicial review, and central government in which only the House of

Representatives were to be popularly elected. Therefore, overtime the Supreme

Court has acquired, in a way, the jurisdiction to regulate the separation of

powers as they see fit.

Government, one of the most important factors in our life, is very complicated.

After I have studied the American government, I find out that the American

government is the most perfect and democratic government in the world. The

government is doing their jobs in the best interest of people, to protect peoples

rights. The most important concept I have learned about the American

government, which guarantee the government get too much power over people,

is the concept of separation of powers.

The Doctrine of Separation of powers is that political power should be divided

among several bodies as a precaution against tyranny. The ideal is opposed the

absolute sovereignty of the Crown, Parliament, or any other body. The blueprint

for United States separation of powers is laid out in the U.S. Constitution and

expanded upon in the Federalist Papers. The checks and balances of the U.S.

government involve the vertical separation of powers among the executive (the

Presidency), the legislature (the two houses of Congress), and the judiciary (the

federal courts). There is also a horizontal separation between the federal

government and the states.

These powers include a number of varying areas. Constitution realized that

power of government coming from people.

Finally, Article III deals with the judicial powers of the United States.

This was the argument that James Madison addressed in The Federalist Papers.

Therefore, the primary duty of government is to protect people’s rights. This is a

check that is put on the executive branch by the legislative branch. In addition,

the Constitution was an antidote for the evils of democracy. In order constrain

both majorities as well as minority, the founders favoured a less efficient

government checked and balanced against itself because it seemed safer than

the risk of tyranny in a more efficient system. It states that the judicial powers

shall be vested in the Supreme Court and in such inferior courts as Congress may

establish.

Checks and balances and separation of powers are concerned with checking both

minority and majority factions that spring from man self-interest.Chief Justice

John Marshall in Marbury vs. Madison. The prime purpose was to protect vested

interests by such curbs upon the masses as checks and balances, especially

judicial review, and central government in which only the House of

Representatives was to be popularly elected.

The founders were haunted by the monarchical system and this idea of checks

and balances was designed to cure the evils of that form of government. This

becomes a check of Congress of the judicial branch.

The United States’ democratic system includes certain features that are intended

to protect against the abuse of the power by the government and public officials.

Some protective features include: judicial review, impeachment process,

freedom of expression, protection against unreasonable searches, and equal

protection under the law, and the rights of the accused.

One important protective feature is judicial review. Judicial review is the power

of the courts to review laws and determine whether or not they are

unconstitutional. The Judiciary Act of 1789 stated that all citizens of the United

States are “separate but equal”, referring to segregation. Blacks were supposed

to be treated equally and fairly, without discrimination just as whites were, but

they were to have separate facilities, schools, etc. In the case of Marbury v.

Madison, on John Quincy Adam’s last night in office, he appointed 82 new

Federalist Justices. These “midnight judges” as they were called represented a

threat to incoming President Thomas Jerreson, a Democrat-Republican.

In this way the Court was able to rule a law unconstitutional and therefore

created the important precedent of judicial review, another significant

protective feature is the impeachment process. Another imperative protective

feature is the rights of the accused. In order for this to occur, the House must

vote on the bill, and the Senate would conduct the trial. Congress may remove

the President if the chief executive is found guilty of misusing his power earliest

interpretation of the law for the next 20 years, a fear that ended up coming to

fruition. Schenck claimed his first amendment rights were violated. Because of

the Judiciary Act of 1801, Marbury appealed directly to the Supreme Court

asking for a “writ of mandamus” or an order to act. the Unites States, individuals

were not aware of their rights when they were being taken under arrest.

Schenck,a member of the Socialist Party, opposed the war and printed and

distributed pamphlets urging citizens to oppose the draft which he likened to

slavery. People believed that a conviction would damage the separation of

powers. Andrew Johnson tried to interfere with the reconstructed plans, and

Congress passed the Tenure of Office Act. The court ruled again Schenck saying

that the Espionage Act did not violate the first amendment and rnment may

place reasonable limitations on freedom the courts to review laws and

determine whether or not they are unconstitutional. The Judiciary Act of 1789

stated that all citizens of the United States are “separate but equal”, referring to

segregation. Blacks were supposed to be treated equally and fairly, without

discrimination just as whites were, but they were to have separate facilities,

schools, etc. In the case

of Marbury v. Madison, on John Quincy Adam’s last night in office, he appointed

82 new Federalist Justices. These “midnight judges” as they were called

represented a threat to incoming President Thomas Jerreson, a Democrat-

Republican.

In this way the Court was able to rule a law unconstitutional and therefore

created the important precedent of judicial review, another significant

protective feature is the impeachment process. Another imperative protective

feature is the rights of the accused. In order for this to occur, the House must

vote on the bill, and the Senate would conduct the trial. Congress may remove

the President if the chief executive is found guilty of misusing his power earliest

interpretation of the law for the next 20 years, a fear that ended up coming to

fruition. Schenck claimed his first amendment rights were violated. Because of

the Judiciary Act of 1801, Marbury appealed directly to the Supreme Court

asking for a “writ of mandamus” or an order to act the Unites States, individuals

were not aware of their rights when they were being taken under arrest.

Schenck, a member of the Socialist Party, opposed the war and printed and

distributed pamphlets urging citizens to oppose the draft which he likened to

slavery. People believed that a conviction would damage the separation of

powers. Andrew Johnson tried to interfere with the Reconstruction plans, and

Congress passed the Tenure of Office Act. The court ruled against Schenck saying

that the Espionage Act did not violate the first amendment and that in times of

war the government may place reasonable limitations on freedom of speech.

Jefferson ordered his Secretary of State, John Madison, not to deliver the official

documents granting Marbury his position. Charles Schenck was arrested for

violating the Espionage Act, passed by Congress in 1914.If found guilty; he would

have been removed from office.

Constitution:

A Constitution is necessary to keep order among the Nation by holding the

Country together. A constitution can be defined as a group of fundamental laws

setting out the structures, principles and process of government. The Framers of

the Constitution got together at the Second Constitutional Convention in order to

define the relationships between the States and the Federal government, among

and between the 3 branches of government and the citizens of the United States

of America.

The Constitution is built around six basic principles: popular sovereignty, limited

government, separation of powers, checks and balances, judicial review and

federalism. In popular sovereignty, all political power resides in the people. They

are the only source for any and all governmental power.

All Federal Courts and most State courts hold the power of the Judicial Review.

This was put into effect in order to build a stronger, more effective National

Government while helping the existing States and the idea of a local self-

government. The Executive branch is made of the President who is able to

appoint Supreme Court justices and other federal judges, is able to veto

legislation, can call special sessions and recommend legislation to appeal to the

people. Government can govern only with the consent of the governed. The

Judicial branch may declare acts of Congress to be Constitutional and are able to

interpret laws. The Legislative branch is made of Congress who can create laws,

appropriates funds to carry out laws and programs and can create lower courts.

The Executive branch carries out or enforces the laws. Federalism means the

division of power between a central government and several regional

governments.

The current structure of the Constitution is composed of three branches. The

principle of limited government holds that no government is all-powerful, that a

government may do only those things that the people have given it the power to

do. The actual ratification did not occur until 1788. A representative democracy

gives people freedom to elect officials they want to represent them.

Government:

Government is defined as the individuals, institutions, and processes that make

the rules for society and possess the power to enforce them. Politics is the

pursuit and exercise of power. Democracy is defined rule by the people. Power is

the possession of control over others. These terms are overlapped and

intertwine, even if their meanings are not the same. For example, the notion

between government and politics is that people engage in politics to become

elected, but in fact, those who govern are constantly making political decisions.

Our society is the institution in which democracy is used to elect government

officials to make rules by exercising politics to possess power over the people.

The relationship of government, politics, democracy, and power are interrelated

in our society.

The government uses politics to exercise their power by establishing new laws,

programs and reform. The government then uses its power to enforce these new

laws, programs and reform. Even though the government has been established

to make rules and uses politics to exercise its power, the ultimate power of

government and politics is democracy. Democracy allows the people to have

influence or control of the government by Outputs of a political system are the

binding decisions it makes such as laws, regulations, or judicial decisions. For

example, the governor is held responsible by the public for leadership and the

actions of state agencies of the overall state; however, he or she has limited

direct control over the major policy making offices, boards, and commissions.

Also, a democratic government carries with it the concept of majority rule, which

everyone is free to vote; but normally whoever receives the most vote’s wins the

election and represents all the people, including those who voted for the losing

candidate. The backing of the government strengthens and balances the

government allowing it to work for the people in providing laws and reform and

protection for its citizens. The Constitution of the United States divided the

government into three branches legislative, executive, and judicial. The framers

of the Constitution knew that the Constitution might have to change; therefore,

they provided amendments to revise the Constitution to meet current

conditions. Sometimes decisions made by the government benefit one segment

of society at the expense of another. The three branches are equal and

independent of one another. The United States is too large for every citizen to

participate in the decisions of government; therefore, America is a

representative democracy. However, a representative democracy is similar to

direct democracy because the elected officials must represent the needs of the

people or they will lose their trust. The framers of the Constitution thought this

would prevent any single branch from becoming too powerful.

Easton’s political system consists of three major parts inputs, outputs and

feedback. The members of Congress then vote to submit proposed changes to the

voters, also the legislature sets a date at the election for the public to vote on the

amendment.

Chapter 4

Judicial review in Bangladesh:

Article 105 of the Constitution of the People’s Republic of Bangladesh provides

that subject to the provisions of an Act of Parliament and any rules made by it,

the Appellate Division may review its own judgment or order.7 When the court

exercise the law of the Government not his work then the question arise of

judicial review. The principle ground when and by what the judicial review may

exercise —by following points.7 Mahmudul Islam, Constitution Law of Bangladesh,

(1) Ultra vires

(2) Abuse of discretionary power

(3) Proportionality.

(4) Legitimate expectation.

(5) Unreasonable exercise of power.

(6) Estoppels

(7) Illegality.

a. Natural justice

b. Right to reason

c. Rule against bias

d. Fairness.

e. Jurisdiction.

(9) Justifiability.

(E) Interpretation.

Primary and strict view: Judicial review of law made by the legislature, the

judiciary has to power to examine the constitutionally of laws made by the

legislative.

Broader and liberal view:

(1)Judicial review of made by the legislature,

(2)Judicial enforcement of fundamental right.

(3)The judicial reviews of administrative action are goes under the

provisions of constitution and also the judicial review of administrative

action are goes under the provision of stationary law.

(4)Judicial review also delegated legislation.

In the sense of constitutional supremacy: Pertinent cannot make any law to

avoid the constitution. It the legislative passed such law than the Supreme Court

may void these types of law. The concept of judicial review are first comes from

U.S.A. and the case was Marbiry VS. Medison. The US Constitution does not say

that it the supreme law of land and not does this constitution confers on the

Supreme Court power to declare a law ultra vires.

Judicial Review in the sense of parliamentary supremacy:

(1)Judicial review of administrative actions under provision of statutory bus.

(2)Judicial review of delegated legislation.

In the sense of parliamentary supremacy only the court observed that

weather the law is in consist with present law or not.

But in the kind of constitutional Supremacy every action of law can be challenge.

Farzand Ali vs. West Pakistan; 22 DLR (1970) 203.

The power of judicial review of superior courts is a matter of constitutional

conformant in our country and it cannot be taken away or abridged by ordinary

legislation.

Anwar Hossain Chowdhury vs. the State; 1989 BLD (Special Issue) 1

Judicial Review is a basic feature of the Constitution and as such cannot be taken

away of control over by government of the constitution.”8

Conclusion:

Judicial review is not the only means of constraining the ruling authorities in a

democratic government, and it is almost certainly not the most effective means.

Elections, the defining feature of modern democracy, probably deserve that title,

and mixed government, with its associated checks and balances, probably ranks

next. Unlike these other means, moreover, judicial review is based on a rationale

that runs counter to our leading moral argument for granting public officials the

authority to control our lives. To these general limitations can be added a more 8 Law of writes in Bangladesh by Md. Ansar Ali Khan P-75

immediate, but certainly not insignificant, concern as the Supreme Court and

lower federal courts have been filled by a President who has now lost the

nation’s confidence and support. Under these circumstances, it is natural for

many scholars to question the desirability of judicial review and seek methods to

avoid or circumvent its consequences.

Bibliography:

Books:

Ansar Ali Khan; Law of writes in Bangladesh

C.K. Takwani; Lectures on Administrative Law 4th Edition-2003 (Dhaka-Shams

Publications)

Mahmudul Islam; Constitutional Law of Bangladesh; 2nd Edition-2001 (Dhaka-

Mollick Brother’s)

Paper:

“The Daily Star”, 27th April, 2007

“The Daily Jugantor”, 28th April, 2007

“The Daily Prothom Alo”, 26th August, 2005.

Website:

www.peacemakers. Ca/research/Bangladesh/ Bangladesh Peace Links.html-36k

http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf

http://www.thedailystar.net/law/2005/10/03/index.htm

http://www.lawcommissionbangladesh.org/reports/55.pdf