“Is the ability of individuals to work in a team important and how is collaboration encouraged. Or is privacy an issue that precludes collaboration?”
Judicial review is a part of administrative law that assists to establish the principle of democracy. The word review denotes reconsider or look over into a matter or decision. In certain circumstances, it has been observed that the action taken by executive or decisions made by judiciary has crossed their limit or infringe any provision of constitutional law. In these cases, the aggrieved party may go to the higher authority for review the decision or action of such government bodies. This is called judicial review[1]. The term judicial review is quite related to the doctrine of separation of power. In separation of power, the judiciary could not interfere into the matters of executive. However, in case of judicial review, the judiciary has the option to supervise the power of the executive if it thinks that the latter has made a contradiction to their power. The application of judicial review is based on the different legal systems and theories. The view of common law about the review is quite different compare to the view of civil law. Similarly, difference can be observed in between legislative supremacy and separation of power[2]. Different parameters are also observed in different countries regarding judicial review.
Definition of judicial review:
In every democratic system, citizens have certain rights and the governments have no power to take those rights away from them. Therefore, invades the democratic rights of the citizen should be stopped for the protection of those rights. In most of the democratic countries, the doctrine of legislative supremacy and separation of power are established. In separation of power, three prime department that is executive, legislative and judiciary of a government are enjoying their power separately and no one can interfere in other’s territory without the process of law. On the other hand, legislative supremacy concentrates on the extreme power of legislature over the other two departments[3].
However, in certain circumstances, it can be observed that both the legislative and executive departments have taken certain decisions that undermine the democratic rights of the citizen and that act as a potential threat to the democratic establishment[4]. Law has provided the citizens an opportunity so that they can place their grievance before the higher or apex court by way of judicial review and the judiciary can take necessary action if it may deem fit[5]. The central theme of the application on judicial review should base on public law.
Process of judicial review in Ireland:
In Ireland, the process of judicial review is classified into two parts such as conventional judicial review and statutory judicial review. If any provision of law or any action taken by the executive department affect the personal liberty of a person, he can plea before the higher court against such decision. In case of implementation of an unfavourable statutory scheme, the public will get a right to go against the statute by way of statutory judicial review.
Subject of judicial review:
Judicial review can be made against public decisions. In Ireland, the administrative bodies and lower courts have the power to take public decisions. Those decisions can be reviewed by the High Court. However, merit of the decisions is not the subject to judicial review; rather the legality of the process of decision making is considered as the subject to judicial review[6]. The higher courts are examined whether the decisions that taken by the authority have based on fairness or not. The decision of the District Courts, Tribunals, deport asylum seeker, legal aid board or decision of the administrative body regarding any environmental dispute are certain examples of public decision[7].
Principle of public decision making:
The public decision making process has certain principles that are needed to be maintained at all the time and in any case, these processes are not being followed, the aggrieved party will get the opportunity to challenge the validity of the decision by way of judicial review. The decision in question should be made by proper authority and the decision should not cross its limits. The decision making process should be based on fairness. The principle of Audi Alterem Partem should have to be maintained at all circumstances by the decision maker. Audi Alterem Partem means each party will get a fair chance to present their own views. Further the decision maker should not be biased in nature while making the decision. Each party should get equal opportunity in case to present their claim. The decision maker is required to follow necessary legal requirements prescribed for such decision.
If all these requirements are not to be maintained properly, the aggrieved party may seek judicial review before the High Court against the decision maker. However, sufficient interests must have to be shown by the applicant and he should have to mention the losses he has suffered by such decision. All the grounds of the case should be mentioned by the party chronologically.
After filing the case, High Court will start to analyze the case and will find out whether the process of decisions is illegal or not. It is also the duty of the court to decide whether the grounds taken by the court are against the fundamental principles of the constitution or not[8]. If the court thinks that the process was illegal in nature, it may quash the decision or may cancel the same.
Judicial review procedure:
Judicial review analyses the merit of the decision. High Court may cancel or invalidate a decision if the decisions are made irrationally. However, the process of judicial review can be classified into certain stages. Leave stage is the first step of judicial review in Ireland. A leave application should be made in this stage for judicial review and the court has analysed the base of the case and will determine the authenticity of the claim. This stage is important as in this stage, the interest of the applicant is revealed and the nature of the case or decision should also get identified at this stage. The applicant must show the arguable aspect of the case. The process of judicial review can only be placed before the court on meeting the requirements of leave stage. The case will be at motion and notice of judicial review should be served to all the parties accordingly.
The next stage is statement of opposition. On serving the notice for judicial review, if the opposite party wants to defend them, they can file a reply statement before the court and may plead their case. After the pleading process, hearing of the case will be started.
If the court cancel or quash the decision, the affected party can be get heard as notice party as the judgment of the court will create certain impacts on him. The process of judicial review has been mentioned in the Rules of Superior Courts[9]. There are certain time limits that have been mentioned for filing a case of judicial review. According to the rule, the aggrieved party can make an application within three months from the date of cause of action. The limitation regarding time has been mentioned under Order 84 Rule 21 (1) of the Rule. However, the time limit can be extended under Order 84 Rule 21 (3) of the Rule.
Grounds for judicial review:
The suitability of a case of being justifiable in Ireland is decided on the following grounds:
Illegality:
In Ireland, the decision maker needs to identify the case correctly and necessary legal provision should be applied by him. In case of any adverse situation, the decision can be challenged by judicial review. The legality of the decision can be identified on the basis of the respective statute applicable in that case. The statute will prescribe the particulars which must be followed by the decision maker. The illegal acts of the decision maker can be made if that particular body will:
In Colaiste Feirste’s case[10], the High Court of Ireland had decided that if any government body had failed to abide by any rules prescribed by the statute, the aggrieved party has all the rights to go against the decision.
Procedural unfairness:
The process of decision making should be based on fair terms and should not affect the fundamental rights of the individual. Procedural fairness is depending on certain circumstances:
A decision will be considered as a subject of judicial review when the decision has been taken by the authority without maintaining the legal provisions. The aftermath effect of such decision will create detrimental effect on the opposite party. If the decision has been taken without giving proper chances to the aggrieved party, the said decision can also be regarded as a subject of judicial review. However, in all the circumstances, the body should be proper and impartial in nature.
Irrationality:
In case of irrationality, the logical approach of the decision maker has taken to be considered. If the decision was irrelevant and the process was illegal, the courts of Ireland may take the same as a subject of judicial review[11]. In a democratic country, the interest of individual should be prioritised and illogical decisions are against these interests[12].
Legitimate expectation:
When a promise has been made by any government body to any individual, the individual can expect that the authority will keep that promise. That is known as legitimate promise[13]. If the decision maker, in certain circumstances, made a decision without keeping the promise, that will go against the legitimate expectation of the individual and the court will consider the decision as a subject to judicial review[14].
Conclusion:
The process of judicial review is one of the bases of democratic framework of a country. In separation of power, all the three authorities of government are enjoying their power separately. However, in such cases, it can be observed that certain decisions are made against the fundamental rights of an individual. Therefore, it has become necessary to go against such order for the establishment of democracy and justice. Judicial review is providing such opportunity to the individual. It gives the individual a power to go against the illogical decision of the legislature or administration. However, it is the discretionary power of the government to accept a plea of judicial review[15]. The applicant must have to prove the legitimacy of the application and should have to show the effect of the proposed decision on the life of the aggrieved party. The court will determine whether a decision is subject to judicial review or not on the basis of abovementioned grounds. The court can quash the previous decision if it may deem fit[16]. In certain circumstances, the court may only pronounce the proper section of law.
References:
Bell, John, and Marie-Luce Paris. “RIGHTS-BASED CONSTITUTIONAL REVIEW. CONSTITUTIONAL.” Romanian Journal of Comparative Law n 1 (2017): 137.
Belyaeva, Galina S., et al. “Basic Ideas of State Power Limitation in Political and Legal Doctrine.” J. Pol. & L. 10 (2017): 197.
Carver, Ray. “State Drone Laws: A Legitimate Answer to State Concerns or a Violation of Federal Sovereignty.” Ga. St. UL Rev. 31 (2014): 377.
Colaiste Feirste v Department of Education [2011] NIQB 98
Corwin, Edward S. The doctrine of judicial review: Its legal and historical basis and other essays. Routledge, 2017.
Corwin, Edward S. The doctrine of judicial review: Its legal and historical basis and other essays. Routledge, 2017.
Corwin, Edward S. The doctrine of judicial review: Its legal and historical basis and other essays. Routledge, 2017.
Eliasson, Anna, and Shameem Ahmad. “Clarification on Awarding Costs and Relief: R (Hunt) v North Somerset Council.” Judicial Review 21.4 (2016): 285-288.
Fabbrini, Federico. “The Euro-Crisis and the Courts: Judicial Review and the Political Process in Comparative Perspective.” Berkeley J. Int’l L. 32 (2014): 64.
Figgis, Darrell. The Irish Constitution. Litres, 2017.
Gardbaum, Stephen. “Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?).” The American Journal of Comparative Law 62.3 (2014): 613-640.
Heidemann, Maren, and Dania Thomas. “Judicial review in the eurozone: the court system as regulator? the case of the sovereign debt crisis.” Regulating and Supervising European Financial Markets. Springer International Publishing, 2016. 337-363.
Jordao, Eduardo Ferreira, and Susan Rose-Ackerman. “Judicial review of executive policymaking in advanced democracies: beyond rights review.” (2014).
Jordao, Eduardo Ferreira, and Susan Rose-Ackerman. “Judicial review of executive policymaking in advanced democracies: beyond rights review.” (2014).
Neill, James. “Public Law Challenges to the Sale of State Assets: R (SDC LLP) v Secretary of State for Business, Energy and Industrial Strategy.” Judicial Review 22.2 (2017): 204-207.
Woolf, Right Hon, et al. De Smith’s Judicial Review: First Supplement to the 7th edition. Sweet & Maxwell, 2014.
Woolf, Right Hon, et al. De Smith’s Judicial Review: First Supplement to the 7th edition. Sweet & Maxwell, 2014.
Belyaeva, Galina S., et al. “Basic Ideas of State Power Limitation in Political and Legal Doctrine.” J. Pol. & L. 10 (2017): 197.
Gardbaum, Stephen. “Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?).” The American Journal of Comparative Law 62.3 (2014): 613-640.
Figgis, Darrell. The Irish Constitution. Litres, 2017
Jordao, Eduardo Ferreira, and Susan Rose-Ackerman. “Judicial review of executive policymaking in advanced democracies: beyond rights review.” (2014).
Corwin, Edward S. The doctrine of judicial review: Its legal and historical basis and other essays. Routledge, 2017
Figgis, Darrell. The Irish Constitution. Litres, 2017.
Bell, John, and Marie-Luce Paris. “RIGHTS-BASED CONSTITUTIONAL REVIEW. CONSTITUTIONAL.” Romanian Journal of Comparative Law n 1 (2017): 137.
Fabbrini, Federico. “The Euro-Crisis and the Courts: Judicial Review and the Political Process in Comparative Perspective.” Berkeley J. Int’l L. 32 (2014): 64.
Colaiste Feirste v Department of Education [2011] NIQB 98
Neill, James. “Public Law Challenges to the Sale of State Assets: R (SDC LLP) v Secretary of State for Business, Energy and Industrial Strategy.” Judicial Review 22.2 (2017): 204-207.
Jordao, Eduardo Ferreira, and Susan Rose-Ackerman. “Judicial review of executive policymaking in advanced democracies: beyond rights review.” (2014).
Carver, Ray. “State Drone Laws: A Legitimate Answer to State Concerns or a Violation of Federal Sovereignty.” Ga. St. UL Rev. 31 (2014): 377
Corwin, Edward S. The doctrine of judicial review: Its legal and historical basis and other essays. Routledge, 2017.
Corwin, Edward S. The doctrine of judicial review: Its legal and historical basis and other essays. Routledge, 2017.
Eliasson, Anna, and Shameem Ahmad. “Clarification on Awarding Costs and Relief: R (Hunt) v North Somerset Council.” Judicial Review 21.4 (2016): 285-288.
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