Judicial review of legislation---a powerful mechanism and its Historical overview

JUDICIAL REVIEW OF LEGISLATION---A POWERFUL MECHANISM AND ITS <!--[if gte mso 10]> JUDICIAL REVIEW OF LEGISLATION---A POWERFUL MECHANISM AND ITS HISTORICAL OVERVIEW By Dr. Shaukat Husain, Advocate Supreme Court of Pakistan Some Preliminary Insights: The doctrine of judicial review may be defined as: The courts have the power to determine the legitimacy of the acts of the executive and legislative branches of the government. Judicial review is the feature of a legal system where hierarchy of laws related to different law-making authorities has been clearly defined. It is, of course, a conspicuous phenomenon of a written constitution especially under federal system where conflict between the two governments may arise and the Courts are necessitated to shoulder the responsibility for the resolution of that dispute. It is possible to premise a decision that it is the subordinate position of the legislature and the executive in the hierarchy of law-making as compared to the Constitution, which is a reservoir from which all laws flow, that has made the assertion by the Courts of their review power a necessity. If the supremacy of the Constitution is required to be maintained in practice, the courts must refuse to enforce the legislative or executive act which is in conflict with it. Moreover, the Constitution allocates the powers to various branches of the government and that division, by its very nature creates the foundation of the doctrine of judicial review. It was the Constitution of United States of America which originated the era of `constitutionalism' with the notion of the supremacy of the Constitution over ordinary laws.1 The supremacy of the Constitution establishes the sanctity of fundamental laws which carries the sanction of the society as to how they want to be governed. This provides system which requires, on the one hand, the working of three organs of the Government, in coordination with each other and on the other that each branch should operate strictly in its province. This constitutional arrangement not only empowers the judiciary to protect the fundamental law of the land but it has also attained the role of passing on the validity on the use of powers by the legislature and executive. The question, why the constitution is the supreme law of the land, is very simple to answer---because it was ordained by the people---the ultimate source of all political authority. 1. U.S. Constitution Art. VI, S.2. Despite the fact, that the constitution was adopted by the American society as its `fundamental law' which makes it hierarchically superior to other laws passed by the legislature in the sense that the validity of these laws depends on their conformity with the Constitution. It was suspected whether the principle of judicial review was embedded in the minds of the American founding fathers. Even if we believe that they have had this idea in their minds, they assuredly failed to spell it out, literally. But it, is a matter of record that this issue was extensively debated and the framers showed their distrust, in an unrestrained popular government. It can be inferred that they wanted the power of judicial review to be invested in the judiciary to keep the constitutional lines straight. This view stood ratified by the fact that the eminent jurists such as Professor Beard, Corwin, Berger and Mason had shown their agreement, with that of the delegates.1 The central theme of the whole discussion seems to be that the courts should decline to give weight of law to a direct violation of the Constitution. It is further confirmed what James Madison--one of the celebrated founding fathers wrote in Federalist No.78. "that Judiciary is truly the only defensive armour of the Federal Government, or rather for the Constitution and laws of the United States. Strip it of armour and the door is wide open for nullification, anarchy and convulsion.2' It suggests that the judiciary should review the State laws on the touchstone of the Federal Constitution which is not, only imperative to save the Federation but also to establish the supremacy of the Constitution. This word of caution at this stage was very timely. Nullification was the alleged right, of a State to nullify a Federal Statute. In case this practice was allowed to 1. See Beard, Charles, "The Supreme Court.---Usurper or Grantee. 27 Pot. SC. Quarterly 1 (1912); Farrand, Max. "The Framing of the Constitution of the United States, (New Haven: 1913); Corwin E.S. The doctrine or Judicial Review (Princeton--1914) and Beard, Charles. "the supreme Court and the Constitution (Rev. Ed.) New Jersey--1962). 2. As quoted by Warren, Charles. The Supreme Court in the United States History. (Boston--1937) Vol. I, P.740. perpetuate, then neither the Constitution could be established as the higher law nor federation was to be maintained. It was tantamount, to jeopardize the growth and stability of the national union if the States were allowed to declare a federal law unconstitutional and to refuse its validity within the State. James Wilson was another prominent founding father who observed "that the Constitution was supreme law; that it was for the judges to declare and apply it. That what was subordinate must give way; and that one branch of the government infringed the Constitution was no reasons why another should abet such infringement.1 In fact it was the constitutional requirement not the desire of the judges to have the power of judicial review. The primacy of the Constitution is to be maintained if the conflicting act of any branch of government will be done away with. The basic tenet of judicial review is that where applicable the provisions of the Constitution must control judicial decision-making. James Wilson stated at the time of his elevation to the U.S. Supreme Court: "if any federal statute were to be inconsistent with those powers vested by this instrument in Congress, the Judges will declare such laws to be null and void."2 It appears that the power of judicial review was meant to be given to the judicial arm of the government to check other branches from overstepping their constitutional limits. John Marshall also declared that "the judiciary would void congressional attempts to make a law not warranted by any of the powers enumerated."3 1. The works of James Wilson (McClosky Ed., 1967). 2. Elliot, J., Debates in the several State conventions on the adoption of the Federal Constitution (2nd ed. 1881) at 489. 3. 2d at 553. Perhaps this idea is grounded in an historical distrust, in the legislature and the executive. As pointed out by one writer the institution of judicial review is a powerful counter-majoritarian force. The underlying aim of judicial review is not to allow the exercise of any power not granted by the Constitution. Hamilton also argued that "the Court would act, as a barrier to the growth of the Congressional power."4 It is not simply a stretch of imagination, it is something embodied in the Constitution. The reason for their distrust of the legislature can be found in their experience under the English colonial rule. It provides an insight into the minds of the framers that they wanted the judiciary to adjudge between the people and the legislature. Hamilton further declared that "Judicial review was definitely meant to be incorporated into the prerogatives of the judiciary, that the courts were designed to be an intermediate body between the people and the legislature in order among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts".1 4. Hamilton, Alexander; the Federalist No.78 at 521, 522. Such a vivid declaration by a framer of Hamilton's Stature leaves no room for doubt that the power of judicial review was meant to be attributed to the judiciary. It is in line with the system founded on the separation of powers---an organic feature of the Constitution which serves the ends of the society that wishes to be democratic and this position can only be achieved if the constitutional boundaries fixed for each organ of the government are properly policed. The constitutional grant of this power is multipurpose as on the one hand it was meant to save the citizenry from an arbitrary rule and on the other it was necessary to the maintenance and sustenance of the federation. Madison may be cited here as having suggested on several occasions that "the judicial branch was intended as the surest, expositer of the boundaries....between the Union and the member."2 In the light of these observations, let us take stock of the judicial role that how far it has proved to be the expositer of boundaries between the Union and the member, the guardian of the rights of the people and the promoter of the system based on the separation of powers. But before exploring the concept of judicial review, let us take a brief account of its historical antecedents. 1. Hamilton, Alexander; the Federalist No.78 at 521, 522. 2. Letters and other writings of James Madison 349 (congress ed. 1884) See also Federalist No.39 (J. Madison) at 250, 256. Historical Antecedents of Judicial Review The concept of judicial review owes its force to a long historical background of recognition of a higher law. Tracing out, the historical roots of judicial review the first name that comes into one's mind is that of Greek Philosopher Plato, who advanced strong arguments in support of the doctrine in his classic work "The republic" that there are fundamental principles superior to any man-made rules. "The Laws"---another philosophical dialogue is further proof of Plato's firm faith in the efficacy of constitutions and codes.3 This was the era when the idea of higher law was emanated. It is evident that this idea is reflected in the philosophy of Plato, Socrates and Aristotle if not earlier than that. The law, said Aristotle, is reasons unaffected by desire."4 Surely the ruler cannot dispense with the general principle which exists in law, for the rule of law is preferable to that of any individual.5 This is to say that natural law is a higher law and it will invalidate ordinary. law in case of conflict between them. It was, perhaps the execution of his great friend and teacher---Socrates, which inspired Plato to have deep seated faith in the rule of law. Sometimes it is the vice which engenders love for virtue in a human mind. It was seemingly because of his reaction to contemporary events that he advocated society to live under the rule of best of laws.1 Greek Philosophers believed in the doctrine of supremacy of law and discarded the unjust law for its repugnance to natural law. The Greek Philosophy became convincingly very dear to Roman Jurists who wove it, into their body politic and it governed the world long before the fall of the Roman Empire. 3. Plato, The Laws (Penguin Classics--1970). 4. Aristotle, Politics Book III, Ch.16. 5. Id. Chap. 15. 1. See Morrow, G.R; Plato's Epistles (Ilnd. Ed. New York-1962) at 148. The Greco-Roman concept of higher law gained a prominent position in the thought of the Middle Ages when a distinct line was drawn between `jus naturale' which was superior and inviolable and that jus positivism which was bound to conform with the former. In the thirteenth century, Bracton said that rulers were subject to law. The King shall not, be 'subject to men, but to God and the law--Since, law makes the King.2 The Magna Carta (1215) and its subsequent confirmations set out rights seeking to remedy the grievances of certain classes of the community.3 In the 17th and 18th centuries, this concept became more popular which is visible from the writings of contemporary scholars. During the English Revolution of 1688, John Locke while advocating legislative supremacy within the natural law limitations, had unwittingly provided a persuasive rationale for judicial review which found its way into the American constitutional thought.4 Lord Coke's ruling in the famous Bonham's case seems very relevant here. "Where an Act of Parliament is against common right or reason the common law will control it and adjudge such act to be void."5 2. D'Entreves, P.86; Maitland at 100-4, Mellwain, C.H., Constitutionalism Ancient, and Modern, Ch.4. 3. Wades E.C.S. and Phillips G.G. Constitutional and Administrative law at 10. 4. Harz, L., the liberal traditions in America (1955) at 140 Lockes dominates America political thought observes Hartz, "as no thinker anywhere dominates the political thought of a nation." 5. (1610) 8 Co. Lord Coke set a precedent to declare an Act of Parliament void if it contravenes common right and reasons. Somebody may differ that Coke ruling cannot be considered the origin of judicial review, but the idea was successfully passed on to posterity which is undoubtedly a great contribution. Three years later he again asserted, "if the supreme legislature errs, it is informed by the Supreme Executive in the King's Court of law."1 In this 'statement Coke tot only ratifies his previous belief that the Courts should have review 'Power over legislative acts but also suggests the system of separation of powers. Though the idea of judicial review was expounded by English Judges, it could not gain ground on their soil. It is clear from Captain Streater's case2 in which Coke's peers held that .."we must submit to the Legislative power else things will run round." It is absolutely clear that the supremacy of Parliament in England superceded all other notions and consequently the concept of judicial review was abandoned by the English Judiciary. It is interestingly noteable phenomenon that the Americans picked up the idea of higher law more efficiently than the English in whose country it was expounded. In 18th century a major break through was made by the Americans when they made the Constitution. The supremacy clause of U.S. Constitution declares by its own terms the supreme law of the land. "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land; and the Judges in every State shall be bound thereby anything in the Constitution or laws of any State to the contrary notwithstanding."3 1. The Rights of British Colonies (1764) at 71 2. 5 How St. Trs. 365. 3. U.S. const. Art. VI, Sec. 2. Analysis of the above provision brings this fact, home that Constitution is the supreme law of the land. It also explicitly makes it clear that the Constitution or laws of any State contrary to it are void. The supremacy clause read with section 2 of Art. III of the U.S. Constitution leaves no doubt in one's mind the power of judicial review was meant to be given to the courts. One may say that the concept of judicial review was not expressly provided by the fathers of the Constitution but it assuredly alludes to it by implication. It was further strengthened when federal judiciary was vested with powers to reverse the State law which was found to be in conflict with the Constitution.4 It was further supported by the framers of the Constitution that the judiciary should have review power. James Madison, Alexander Hamilton, James Wilson, Jefferson and Samuel Adams had endorsed this view point that the power of judicial review is imperative for the American polity.5 These averments impel us to say that it is far more rationale to suppose that the Courts were designed to be an intermediate body between the people and the legislature in order among other things to keep the latter within limits assigned to their authority.1 The positive averments of the founding fathers and the Constitution convinced the Judges and they instinctively refused to carry out a congressional statute that they deemed contrary to the Constitution. It was the Heyburn's case2 in which the Court ventured to establish the institution of judicial review. In 1793, John Jay--The then Chief Justice of U.S. Supreme Court, refused to tender legal advice to President Washington on a question of American Policy towards a war then in progress in Europe.3 It was the practical demonstration of judicial self restraint which later on became a powerful weapon with the judiciary to refuse deciding any case. In the same year the court, ruled in Chisholm v. Georgia4 that the jurisdiction of the Federal Courts under the Constitution could extend to suits instituted against a State in its sovereign capacity. 4. Judiciary Act, 1789, Sec. 25. 5. Federalist Nos.78, 79, 80 and 83. 1. See Burger, R. Congress v. The Supreme Court (1969) at 203-5. 2. 2 Dallas 4-9 (1792). 3. Hyneman, S.C., The Supreme Court, on Trial (New York: 1963) at 74. 4. 2 U.S. (2 Dail.) 419 (1793). In 1795, Justice William Patterson--who had been a delegate in New Jersy held for he Constitution in Van. Horne's Lessie v. Dorrance, "whatever may be the case in other countries, yet in this there can be no doubt, that every act of legislature repugnant to the Constitution is absolutely void." In addition to this, during the formative era at least, eight States' ratifying convention expressly discussed and accepted the power to pronounce legislative acts null and void.5 Furthermore between 1789 to 1803 the Courts in ten of the States had exercised the power of judicial review and declared State laws to be in conflict with State Constitution. Nevertheless, the concept of judicial review says Professor Cappatelli, is a product of our common western history and logical result of centuries of Europeon thought and colonial experience.6 But Professor Beard suggests: "It is the product of American Political genius7 Both the statements are true in the context they have been said, but as we say that nothing succeeds like success, so it was the progeny of the U.S. Constitutional law. John Marshall a great Jurist established the institution of judicial review in Marbury v. Madison (1803) which is now a powerful instrument with the U.S. Judiciary with which it has turned the Constitution a bulwark of liberty and freedom for the American People. 5. New York; Massachusetts; New Jersey; Rhode Islands and others as quoted by Arbraham, H.J; The Judicial Process at 324. 6. Capalleti, M. Judicial review in the Contemporary world (Indiana Pohs-1971) at 25. 7. Beard, c. An Economic Interpretation of the Constitution of the United States (1935) at 162.