Judicial Review by IMRAN AYAZ (LL.M.) (LL.B.)

JUDICIAL REVIEW IMRAN AYAZ
JUDICIAL REVIEW
IMRAN AYAZ (LL.M) (LL.B)
Judicial review is vulnerable to attack on two fronts. It does not, as it

often claimed, provide a way for society to focus clearly on the real
issues at stake. When citizens disagree about rights, and it is
politically illegitimate, so far as democratic values are concerned by
privileging majority among a small number of unelected and
unaccountable judges, it disenfranchises ordinary citizens and brushes
aside cherished principles of representation and political equality.
Is judicial review incompatible with democratic government? Should courts have the
power to examine the legislature’s enactment process and strike down statutes enacted contrary
to procedural lawmaking requirements? This idea remains highly controversial. While
substantive judicial review is well-established and often taken for granted, many judges and
scholars see judicial review of the legislative process as utterly objectionable and politically
illegitimate. Judicial review is necessary for protecting “a right to a hearing.” Judicial review is
praised by its advocates on the basis of instrumentalist reasons. Because of its desirable
contingent consequences such as protecting rights, promoting democracy, maintaining stability1.
Is judicial review incompatible with democratic government? It is impossible to decide whether
or not judiciaries are better than legislatures at protecting rights, because evidence on this matter
is inconclusive. While on the other hand, legislatures are overwhelmingly superior to courts from
a procedural perspective. This is because legislatures are more legitimate, egalitarian and
participatory than courts, and so embody crucial democratic rights and values to an extent that is
impossible for the latter to imitate2. “Judicial review is vulnerable to attack on two fronts. It
does not, as is often claimed, provide a way for society to focus clearly on the real issues at stake
when citizens disagree about right. And it is politically illegitimate, so far as democratic values
are concerned: by privileging majority voting among a small number of unelected and
unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles
of representation and political equality”3. Judicial review is a present instrument of government.
It represents a choice that men have made, and ultimately we must justify it as a choice in our
own time.
Judicial review is justified to the extent that it is likely to contribute to the protection of rights
either directly, by correcting legislative decisions that violate individual rights, or indirectly, by
inhibiting the legislature from making decisions that would violate individual rights4. "it is
reasonable to believe that a constitutional democracy with a well-designed system of judicial
1
Harel, Alon, Rights-Based Judicial Review: A Democratic Justification [2003] 22 Law & Phil, pg. 247–276,
Available at: https://www.researchgate.net/publication/226472274_Rights-
Based_Judicial_Review_A_Democratic_Justification Accessed on April 5, 2020 at 05:07 pm
2
Lever, Annabelle, Democracy and judicial review: are they really incompatible? Perspectives on Politics [2009] 7
(4). pp. 805-822. Available at: http://eprints.lse.ac.uk/23097/ Accessed on April 5, 2020 at 05:07 pm
3
Jeremy Waldron, The Core of the Case Against Judicial Review, [2006] Yale Law Journal, 115 No. 6, pg 1346.
Available at: https://digitalcommons.law.yale.edu/ylj/vol115/iss6/3 Accessed on April 5, 2020 at 05:07 pm
4
Abraham, Henry. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and
France [1998] 7th edn. New York: Oxford University Press
review would produce a morally better pattern of outcomes than a political democracy without
judicial review under circumstances that plausibly exist. A claim for judicial review has a special
quality which sets it apart from other forms of litigation: it is a claim against the government
which may result in the government’s unlawful actions being quashed. Perhaps we have come to
take its existence for granted, but its key elements are striking: not only do individuals have the
power to subject government decisions to an independent review of lawfulness, but such power
is exercised on the premise that the government abides by the outcome in its exercise of
executive power. Judicial review thus defines our constitutional climate. It plays a key role in
ensuring that the executive acts only according to law. Without it, we are closer to an
authoritarian or even totalitarian state. With it, we live under the rule of law5. Judicial review is
inconsistent with the importance that democracies properly attach to political participation and to
equality. apparently incongruity of a democracy giving a small group of unelected judges the last
word on matters which concern citizens and legislators, and on which citizens and legislators
may be at least as well-informed, and capable of reasoned decisions, as judges. In addition to a
properly functioning judiciary, democracies should normally be expected to have citizens and
legislators who care about, and are capable of protecting, the basic rights of members. There is
no compelling reason to prefer the decisions of judges to legislators where rights are at stake, and
good reasons to believe that doing so detracts from important democratic values and rights6.
Despite the flourishing of judicialisation of rights across the world, skepticism is not in
short supply. Critiques range from concerns over the democratic legitimacy and institutional
competence of courts to the effectiveness of rights protections. This article debate and asks to
what extent judicial review protects the rights of citizens when they disagree? Secondly, whether
a small number of unelected and unaccountable judges can strike down laws made by elected
and accountable government? Thirdly, to what extent judicial review disenfranchises ordinary
citizens and brushes aside cherished principles of representation and political equality. Fourthly,
whether judicial review is democratically illegitimate? Fifthly, whether judicial review is
5
Amy Street, Judicial Review and the Rule of Law Who is in Control? [2013] Available at:
https://consoc.org.uk/wp-content/uploads/2013/12/J1446_Constitution_Society_Judicial_Review_WEB-22.pdf
Accessed on April 6, 2020 at 05:07 pm
6
Jeremy Waldron, The Core of the Case Against Judicial Review [2006] Yale Law Journal, 115 No. 6, pg 1346.
incompatible with democratic government? Sixthly, whether judicial review is desirable element
of modern democracy.
Opponents, as well as proponents, of judicial review value rights and seek to protect
them, so that the issue between them is not whether rights ought to be protected, but how such
protection should be institutionalized. What we are concerned with at least for the moment is the
justification for the judicial review of legislation rather than of the executive or administrative
functions of government. People caring for rights, and being willing to protect them, if a society
is committed to the protection of individual and minority rights as, it should be in a democracy,
people must believe that “individuals have certain interests and are entitled to certain liberties
that should not be denied simply because it would be more convenient for most people to deny
them. The strongest version of rights protection under the Constitution is understood as a scheme
of moral rights imbedded into capacious text, structure, and history, and that people of good faith
can and will necessarily disagree about what those rights are and what they entail. Judicial
review is not illegitimate, important insight that has been severely underappreciated in
discussions about the legitimacy vel non of judicial review: the possibility of reasonable
disagreement among people of good faith about what rights entail. In light of that insight, if we
are to maintain a system of judicial review, what could or should courts do to mitigate the
compromise of moral agency of the people. Although courts as better able to make decisions
about rights because of their institutional characteristics, “there are also things about courts that
make it difficult for them to grapple directly with the moral issues that rights-disagreements
present.” The choice of which institution is the preferable repository of rights depends largely on
important assumptions about the society making the laws. A nation that traces power to the
people's will does not easily digest the practice of unelected and unaccountable judges' denying
the populace what most of them appear to want. It is no wonder that a substantial portion of
constitutional scholarship deals with the apparent tension between judicial review and
majoritarian democracy7. Judicial review in its conventional guise, however, does not entail a
direct conflict between the judiciary and the people. It is instead the will of a legislature that is
being thwarted in the name of the Constitution. The will of the legislature declared in its statutes,
7
Julian N. Eule, Judicial Review of Direct Democracy [1990] The Yale Law Journal, Vol. 9, pp. 1503-1590
Available at https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7282&context=ylj Accessed on April
11, 2020 at 06:15 pm
stands in opposition to that of the people declared in the constitution, the judges ought to be
governed by the latter, rather than the former." While we ordinarily engage in the fiction that
legislative enactments represent majority will8. This fiction is discarded when courts find that the
people's agents have acted beyond the power delegated to them by the constitutive document. It
would be tragic if the judiciary's enemies were to derive sustenance from theories that, although
sympathetic to the cause of liberty, cling to the mistaken assumption that judicial review and
democracy are inevitably at odds with one another. It is encouraging that some of the world's
leading jurists have begun to insist upon a pro-democratic account of judicial review9. The
decision pro or contra judicial review is not one of principle but one of pragmatics. The choice
has to be made between different types of democracy, not between democracy and judicial
review10. Judicial review is the soul of the constitution itself. Strip the constitution of judicial
review and you have removed its very life. It is therefore no wonder that judicial review is now
developing. The majority of enlightened democratic states have judicial review. The twentieth
century is the century of judicial review.11
Opponents, as well as proponents, of judicial review value rights and seek to protect
them, so that the issue between them is not whether rights ought to be protected, but how such
protection should be institutionalised. What we are concerned with at least for the moment is the
justification for the judicial review of legislation rather than of the executive or administrative
functions of government. People caring for rights, and being willing to protect them, if a society
is committed to the protection of individual and minority rights as, it should be in a democracy,
people must believe that “individuals have certain interests and are entitled to certain liberties
that should not be denied simply because it would be more convenient for most people to deny
them. They believe that minorities are entitled to a degree of support, recognition and insulation
that is not necessarily guaranteed by their numbers or by their political weight”. This
commitment “is not just lip service” because people “take rights seriously: they care about them,
they keep their own and others’ views on rights under constant consideration and lively debate,
8
Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution [1984] 93 Yale Law Journal 1013, pg 1027
11, 2020 at 06:15 pm
9
Stephen Breyer, Our Democratic Constitution [2002] 77 N.Y.U. L. Rv. 245
10
Dieter Grimm, Constitutional Adjudication & Democracy [1999] 33 Israel Law Review 193, 201
11
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, 49(4) PD 221 (1995). Available at
https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village Accessed on April 11, 2020
at 08:28 pm
and they are alert to issues of rights in regard to all the social decisions that are canvassed or
discussed in their midst”. But while it is hard to go much further without courting distracting
controversy, the idea that what is at stake in protecting rights is “convenience” does seem a bit
misleading. The sacrifice need not be society wide, or fall with equal weight on everyone. So a
great deal turns on people having the disposition to protect rights. Some people might feel that
this is more critical than knowledge, however vague, “that human rights conventions have
become ascendant in the world since 1945, and that their history reaches back to the sort of
conceptions of natural right alluded to in documents such as the 1776 Declaration of
Independence and the 1789 French Declaration of the Rights of Man and the Citizen”12. Judicial
review disserves the very goal to which defenders of judicial review insist it is essential: the
protection of rights. Although many challengers of judicial review have, in some cases justly,
been accused of valuing rights too little, The strongest version of rights protection under the
Constitution is understood as a scheme of moral rights imbedded into capacious text, structure,
and history, and that people of good faith can and will necessarily disagree about what those
rights are and what they entail. The disagreement over what constitutes a right may not be
resolved by unelected judges without compromising principles of political equality among
citizens. For example, two people who disagree about whether a woman’s right to terminate her
pregnancy may be restricted can both accept the centrality of a right to life and a right to personal
autonomy but have different “conceptions” of those rights. Both sincerely held and both held
alongside a commitment to rights protection in general. Relegating resolution of these
differences to courts insults and disenfranchises the polity in violation of the basic terms of
legitimate democracy. Judicial review is not illegitimate, important insight that has been severely
underappreciated in discussions about the legitimacy vel non of judicial review: the possibility of
reasonable disagreement among people of good faith about what rights entail. In light of that
insight, if we are to maintain a system of judicial review, what could or should courts do to
mitigate the compromise of moral agency of the people. Although courts as better able to make
decisions about rights because of their institutional characteristics, “there are also things about
courts that make it difficult for them to grapple directly with the moral issues that rights-
disagreements present.” The choice of which institution is the preferable repository of rights
12
Lever, Annabelle, Is judicial review undemocratic? Public Law (2007) pg. 280-298 Available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2559940 Accessed on April 8, 2020 at 05:00 pm
depends largely on important assumptions about the society making the laws. If the legislature at
issue is subject to malfunctions such as sectarian or racial prejudice, then a judicial check on
laws is needed to remedy violations of rights that may have been undervalued by the lawmaking
body. But in a society with a robust culture of representation, political equality, and open debate,
Legislatures are in at least as good a position as courts to consider rights and, moreover, are freed
of some of the obsessions that he believes hinder courts from confronting the true moral
implications of their decisions. “What would a world without Judicial Review look like”. There
has been an explosion of legislation, much of it rushed through without sufficient consideration.
This has given rise to uncertainty which generates litigation. Under the pressure of major
national and international challenges, executive public bodies take risks and make decisions
which are, at least arguably, of doubtful legality. Thus, for example, they have made
controversial decisions to safeguard national security from the threat of terrorism, to maintain an
effective immigration policy and to cut costs in order to reduce the national debt. Decisions in
these and other areas inevitably involve making political judgments and promoting the interests
of one group of individuals at the expense of those of others. Representative democracy is not
about just counting heads and leaving it to Parliament. The Courts are a fundamental democratic
component of our unwritten Constitution. The Rule of Law and the Separation of Powers are
hallmarks of our democracy. They are not antithetical to it. The resolutions of moral, social and
even “political” issues are not the exclusive prerogative of Parliament. The Courts too have a
fundamental role in resolving these matters13.
It would require an uncommon portion of fortitude in the judges to do their duty as

faithful guardians of the Constitution, where legislative invasions of it had been instigated by the
major voice of the community14. A nation that traces power to the people's will does not easily
digest the practice of unelected and unaccountable judges' denying the populace what most of
them appear to want. It is no wonder that a substantial portion of constitutional scholarship deals
with the apparent tension between judicial review and majoritarian democracy15. Judicial review
13
Robert Griffiths, Democracy and Judicial Review [2015] available at http://robertgriffithsqc.co.uk/democracy-
and-judicial-review/ accessed on April 10, 2020 at 01:26 am
14
Alexander Hamilton, The Federalist, No. 78 at 509 (Modern Library ed. 1937) Available at
https://www.jstor.org/stable/j.ctt5vm398 Accessed on April 11, 2020 at 06:15 pm
15
Julian N. Eule, Judicial Review of Direct Democracy [1990] The Yale Law Journal, Vol. 9, pp. 1503-1590
11, 2020 at 06:15 pm
in its conventional guise, however, does not entail a direct conflict between the judiciary and the
people. It is instead the will of a legislature that is being thwarted in the name of the
Constitution. In fact, this very lack of identity between the people and their representatives forms
the foundation for Alexander Hamilton's defense of judicial review in The Federalist No. 78:
"Where the will of the legislature declared in its statutes, stands in opposition to that of the
people declared in the constitution, the judges ought to be governed by the latter, rather than the
former16." While we ordinarily engage in the fiction that legislative enactments represent
majority will17. This fiction is discarded when courts find that the people's agents have acted
beyond the power delegated to them by the constitutive document. The Constitution established
an essentially-popular government, but the problem with all popular governments is the constant
tendency of majorities to oppress minorities, particularly during temporary periods of political
passion. The framers therefore institutionalized certain checks against the temporary ambition of
the majority through such features as the bicameral legislature and the executive veto, while
respecting the popular foundation of a country’s political authority in the form of an original
ratification of its Constitution in the people of the nation and of regular revisions to the
fundamental law through amendments to the Constitution when a supermajority agrees to it. So,
the Constitution, taken as a whole, represents the will of the people bound by certain constraints
to prevent tyranny of the majority. Any action of an elected representative, president, or Supreme
Court justice at odds with the Constitution therefore is at odds with the will of the people. We
have a word for that: unconstitutional. What shall we say then of judicial review? If
Parliament passes unconstitutional laws that cannot in any true sense represent the will of the
people, especially if it were to represent only some temporary spasm of political desire on the
part of a majority of the country. When Parliament passes a law that it had no authority to pass, it
effectively “enables the representatives of the people to substitute their will to that of their
constituents.” When this happens, the Supreme Court may lawfully act as “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.” In this way, the essentially-democratic nature of the practice
of judicial review: “If there should happen to be an irreconcilable variance” between the
16
Alexander Hamilton, Federalist No. 78, [1788] Available at https://www.jstor.org/stable/j.ctt5vm398 Accessed
on April 11, 2020 at 06:15 pm
17
Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution [1984] 93 Yale Law Journal 1013, pg
1027 Available at https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6870&context=ylj Accessed on
April 11, 2020 at 06:15 pm
Constitution and a law of Parliament, “that which has the superior obligation and validity ought
of course to be preferred; or in other words, the constitution ought to be preferred to the statute,
the intention of the people to the intention of their agents.” Rather than being undemocratic,
judicial review, rightly understood and rightly exercised, defends the long-term will of the
people. “When Congress passes an unconstitutional law, it is in fact the Parliament that is
violating the long-term will of the people, for the judiciary is there to assert the will of the people
as embodied in our shared Constitution over and against that unconstitutional but perhaps
temporarily popular law.18”
The other fundamental principle which must exist in a democratic society is the rule of
Law. Where ministers or officials make decisions affecting the rights of individuals, they must
do so in accordance with the law. The legality of what they do must be subject to review by
independent and impartial tribunals. The principles of judicial review give effect to the rule of
Law. They ensure that administrative decisions will be taken rationally in accordance with a fair
procedure and within the powers conferred by Parliament. Democracy does not mean whatever
the people may decide at a given moment. It means a set of rules and procedures for securing
their control over decision making or decision makers on an ongoing basis. The Rule of Law is
the means for ensuring such control and to make it effective. There are a number of constituent
parts. There must first be institutional arrangements in place to affect such control, a democratic
electoral system, and limits to the powers of judges, ministers and legislators. There should be a
high degree of openness, transparency and accountability on the part of those in power. There
should be an independent and impartial judicial system in place to provide remedies for
individuals against illegal State action or maladministration. The rule of law enforces minimum
standards of fairness, both substantive and procedural19. There should be a set of guaranteed
liberties such as freedom of speech so that the people have the opportunity to express their views
and influence government in policy making. This is entirely appropriate if the decision makers
are those who represent the community at large. It is not appropriate for professional
Judges. The imposition of their personal opinions on matters of this kind would lack all
constitutional legitimacy. The democratic process is liable to be subverted if on a question of
18
William Reddinger, Is Judicial Review Undemocratic? [2017] Available at https://www.learnliberty.org/blog/is-
judicial-review-undemocratic/ Accessed on April 11, 2020 at 06:15 pm
19
Regina v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539, 591F per Lord Steyn
moral and political judgment, opponents of the Act achieve through the courts what they could
not achieve in Parliament.20
There is however another relevant principle which must exist in a democratic society.
That is the rule of law. The principles of judicial review give effect to the rule of law. They
ensure that administrative decisions will be taken rationally, in accordance with a fair procedure
and within the powers conferred by Parliament21. The great security against a gradual
concentration of the several powers in the same department consists in giving to those who
administer each department the necessary constitutional means and personal motives to resist
encroachments of the others. The provision for defense must in this, as in all other cases, be
made commensurate to the danger of attack. Ambition must be made to counteract ambition. The
interest of the man must be connected with the constitutional rights of the place. It may be a
reflection on human nature, that such devices should be necessary to control the abuses of
government. But what is government itself, but the greatest of all reflections on human nature? If
men were angels, no government would be necessary. If angels were to govern men, neither
external nor internal controls on government would be necessary. In framing a government
which is to be administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige it to control itself. A
dependence on the people is, no doubt, the primary control on the government; but experience
has taught mankind the necessity of auxiliary precautions22
The courts’ ability to subject decisions of the executive to an independent review of lawfulness
defines our constitutional climate. There is debate over the meaning of the rule of law; but it may
be thought to have a core meaning for the judiciary in the context of judicial review. There is
debate too over whether it is the will of Parliament (as traditionally understood) or the
constitutional principle of the rule of law (as more recently and controversially suggested by
some) which provides the theoretical justification for the courts’ judicial review jurisdiction. It
may be thought sensible to take this debate into account whichever justification for judicial
review may be favored: if Parliament were to legislate in a way which the courts considered to
20
R (Countryside Alliance) v. Attorney General [2008] AC 719 at paragraph 45
21
Regina (Alconbury Developments Ltd and Others) v v. Secretary of State for the Environment, Transport and the
Regions [2003] 2 AC 295, p 73 per Lord Hoffmann
22
James Madison, The Federalist Number 51 [1788],” Available at
https://founders.archives.gov/documents/Madison/01-10-02-0279 Accessed on April 7, 2020 at 02:00 pm
be contrary to the rule of law, the courts would need to confront whether they consider their
primary obligation to be to the will of Parliament, or to the constitutional principle of the rule of
law. If the courts were to conclude the latter, they may feel justified in not applying Parliament’s
will. Courts also review decision-making for its substantive reasonableness. Traditionally this
has been only in the diluted Wednesbury sense that censures decision-making which no
reasonable decision-maker could have reached. But increasingly it has been recognized that the
intensity of review may increase, depending on the nature of the interests at stake, and their
suitability for judicial review. The emergence of fundamental rights chapters, charters or
conventions has also introduced the concept of proportionality, which the common law has
started to pick up in allied areas23. On the other hand, courts have recognized that they are not
and should not act as primary decision makers. To repeat Justice Jacobucci’s words: “In carrying
out their duties, courts are not to second-guess legislatures and the executives.” Judicial activity
depends on the context. On issues of liberty, freedom of movement, speech or religion, courts
can claim a special expertise. On issues about the use of public resources or economic judgment,
the elected legislature or executive is better placed. But in none of these cases, is it legitimate for
the executive to submit that it is undemocratic for the courts to become involved. Potentially
indefinite detention of aliens suspected of terrorism, the Attorney General submitted that, just as
it was for Parliament and the executive to assess the threat facing the nation, so it was for those
bodies and not the courts to judge the response necessary to protect the security of the public,
since this called for an exercise of political and not judicial judgment24. While judicial review
rightly-understood constitutes an essential feature of a political system, unrestrained judicial
review constitutes a dangerous deviation from democratic principles. Judicial review does not
“suppose a superiority of the judicial to the legislative power. It only supposes that the power of
the people is superior to both.” When the Supreme court strikes down laws of Parliament that are
not in “irreconcilable variance” with the Constitution, the Supreme Court effectively substitutes
its own will for the long-term will of the people as embodied in the Constitution as the final
measure according to which all laws are judged25
23
Kennedy v. The Charity Commission [2014] UKSC 20
24
A (FC) v. Secretary of State [2004] UKHL 56
25
Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857)
The core criticism of judicial review is focused on two main grounds. First, at least in
reasonably mature liberal democracies there is no reason to suppose that rights are better
protected by this practice than they would be by democratic legislatures. In particular the legalist
nature of judicial rights discourse, its focus on text, history, precedent etc., tend to unhelpfully
distract from the moral issues central to the validation of rights claims, whereas these legalistic
distractions do not burden political debate. Second, quite apart from the outcome it generates,
“judicial review is democratically illegitimate”. The protection of rights might be a precondition
for the legitimacy of law, but what these rights amount to in concrete circumstances is likely to
be subject to reasonable disagreement between citizens. Under those circumstances the idea of
political equality requires that rights issues too should be decided using a process that provides
for electoral accountability. Judicial review is well-established and often taken for granted, many
judges and scholars see judicial review of the legislative process as utterly objectionable and
democratically illegitimate. Judicial review is necessary for protecting “a right to a hearing.”
Judicial review is praised by its advocates on the basis of instrumentalist reasons. Because of its
desirable contingent consequences such as protecting rights, promoting democracy, maintaining
stability26. In the U.S., this view corresponds to Chief Justice Marshall’s reasoning in Marbury v.
Madison27. The will or consent of the majority of the people or of their elected representatives
provides the kind of democratic pedigree that can confer legitimating force both on the
constitution and, consequently, on the institution and practice of judicial review based on that
constitution. But this view proves incoherent. Insofar as the strategy postulates that democracy
represents the ultimate normative principle underlying legitimate lawmaking, it means that the
people or their elected representatives not only have the ultimate right to rule over their society,
that is, to make or unmake any law whatsoever, but that they are entitled, as well, to change their
minds with respect to any legal principle and social policy. This idea is expressed in the notion of
popular sovereignty and requires that a democracy be continuous. Accordingly, and as a matter
of principle, the courts should always uphold the law that best represents the will or the consent
of the actual people or of their elected representatives. It follows that where there is a clear
conflict of laws, they should uphold the law that has been enacted by the later democratic body
26
Harel, Alon, Rights-Based Judicial Review: A Democratic Justification [2003] 22 Law & Phil, pg. 247–276,
Available at: https://www.researchgate.net/publication/226472274_Rights-
Based_Judicial_Review_A_Democratic_Justification Accessed on April 5, 2020 at 05:07 pm
27
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
of citizens. Yet, the first strategy states that it would be morally permissible for the courts to
uphold the will or judgment of past citizens the source of the legitimating, democratic pedigree
against the will or judgments of present day citizens and thus, limit their power to determine
democratically for themselves what kinds of policies, values, interests, and ends should be
promoted pursuant to their own interests. The end result is that the first strategy postulates that
democracy should be continuous but seeks, at the same time, to legitimize a form of ‘‘ancestor
worship28. The second strategy purports to avoid this incoherence. The legitimacy of judicial
review, here, derives from the fact that constitutional norms and values express a kind of
collective will that is democratically superior to the will or consent expressed in ordinary
legislation. This strategy may take various forms. According to Bruce Ackerman’s notion of
‘‘democratic dualism,’’ for example, the democratic superiority of the American Constitution,
would derive from the fact that its values are the result of rare moments of lawmaking that
entrench the considered judgments of a mass of mobilized citizens debating together, whereas
ordinary legislation merely reflects the daily work of politicians who speak through institutions
that normally do not truly as it were represent the citizens. Thus courts, in upholding
constitutional values against some particular piece of legislation, may be said to thwart
legitimately the will of representatives on behalf of the people29. Another form of this second
strategy proceeds from what may be called a ‘‘metaphysical democratic dualism.’’ Such a view
presupposes, for example, that there exists a tension within a democratic polity between the
‘‘true’’ people, who would be rational or committed to the authentic purposes of the community,
and the ‘‘empirical’’ people, those who express themselves mostly as voters in an election and,
quite often, are guided by their emotions, self-interests, passions, immediate needs, rhetoric, and
expediency in general. Thus, where some instance of ordinary legislation would be inconsistent
with the rational values of the people or the true purposes of the community, the ‘‘true’’ albeit
theoretical people would ‘‘really’’ wish to nullify policies they manifested as voters ‘‘actually’’
28
Bruce Ackerman, The Storrs Lectures: Discovering the Constitution [1984] 93 Yale Law Journal. 1013 available
at https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6870&context=ylj accessed on April 10, 2020 at
02:14 am
29
Bruce A. Ackerman, We the People: Foundations [1991] pg. 223 available at
https://onlinelibrary.wiley.com/doi/abs/10.2307/3325482 accessed on April 10, 2020 at 02:14 am
wish to promote. Consequently, the courts would be morally entitled to uphold constitutional
values against particular legislation, for they would be upholding the ‘‘true’’ will of the people30.
The justification for democracy is not, therefore, that a majority is likely to be right, but that
majority voting is fair since it treats everyone equally. But even here there is a problem, because
logically unless there is a confined choice between only two options, majority voting cannot
guarantee a majority preference. The second problem comes from human nature that a majority
may oppress unpopular minorities or create repressive laws as a response to an emergency or be
used as a tool by a ruling cabal. We have a constitution which has resulted from a compromise
between individual freedom and the public good. Our elected government can restrict our
freedom by enacting legislation which prioritizes one way of life above another but does not tie
the hands of change. The doctrine of the separation of powers has as its principal objective, the
prevention of the tyranny of the majority by dividing up power. It is in that context that judicial
review should be seen as a fundamental check on the downside of majority rule. In so doing, the
application of the remedy will disclose the essential characteristics of a representative
democracy. This means a system of governance which emanates not simply from the will of the
people but from the application of the normative values which we as individuals hold
intrinsic. That involves keeping equilibrium between the general interests of our society and our
individual rights. The distinction between general interests and individual rights is at the heart of
judicial review. It is getting that balance right which is the problem.
While constitutionalism has a rather long history, constitutional adjudication and constitutional
courts or courts with constitutional jurisdiction were a rarity before the end of World War II. A
worldwide demand for constitutional adjudication arose only after the experiences with the many
totalitarian systems of the 20th century. The post-totalitarian constitutional assemblies regarded
judicial review as the logical consequence of constitutionalism. “Judicial review is the soul of the
constitution itself. Strip the constitution of judicial review and you have removed its very life. It
is therefore no wonder that judicial review is now developing. The majority of enlightened
30
Alexander Mordecai Bickel, The Least Dangerous Branch [1963] available at
http://www.law.uh.edu/faculty/eberman/conlaw/Bickel.pdf accessed on April 10, 2020 at 02:14 am
democratic states have judicial review. The twentieth century is the century of judicial review.31”
It would be tragic if the judiciary's enemies were to derive sustenance from theories that,
although sympathetic to the cause of liberty, cling to the mistaken assumption that judicial
review and democracy are inevitably at odds with one another. It is encouraging that some of the
world's leading jurists have begun to insist upon a pro-democratic account of judicial review32.
The decision pro or contra judicial review is not one of principle but one of pragmatics. The
choice has to be made between different types of democracy, not between democracy and
judicial review33.
There has been an explosion of legislation, much of it rushed through without sufficient
consideration. This has given rise to uncertainty which generates litigation. Under the pressure of
major national and international challenges, executive public bodies take risks and make
decisions which are, at least arguably, of doubtful legality. Thus, for example, they have made
controversial decisions to safeguard national security from the threat of terrorism, to maintain an
effective immigration policy and to cut costs in order to reduce the national debt. Decisions in
these and other areas inevitably involve making political judgments and promoting the interests
of one group of individuals at the expense of those of others. Representative democracy is not
about just counting heads and leaving it to Parliament. The Courts are a fundamental democratic
component of our unwritten Constitution. The Rule of Law and the Separation of Powers are
hallmarks of our democracy. They are not antithetical to it. The resolutions of moral, social and
even “political” issues are not the exclusive prerogative of Parliament. The Courts too have a
fundamental role in resolving these matters34.
How active should judges be in intervening in the business of elected government? Those who
would espouse a minimalist approach have remarked on the social exclusivity of the judges and
their supposed isolation from the real world as well as on their non-accountability to the
electorate. There is the further and perhaps more important point that an adversarial judicial
31
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village 49(4) PD 221 (1995). Available at
https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village Accessed on April 11, 2020
at 08:28 pm
32
33
Dieter Grimm, Constitutional Adjudication & Democracy [1999] 33 Israel Law Review pg. 193, 201
34
Robert Griffiths, Democracy and Judicial Review [2015] available at http://robertgriffithsqc.co.uk/democracy-
and-judicial-review/ accessed on April 10, 2020 at 01:26 am
process is not the most effective means of resolving problems that need often to be considered
having regard to wider considerations of public policy which lie beyond the boundaries of
particular litigation. Courts decide issues that are raised before them by the parties. Occasionally,
they have the benefit of representations by interveners who have a particular knowledge about,
and interest in, the subject of the dispute before the court. But the nature and quality of the
evidence and submissions made to a court in litigation varies greatly. It is not always calculated
to assist the court to arrive at the best solution to the problem. After all, the main objective of
parties is to win their cases. On the face of it appears to require a full merits review. The question
“do the measures strike a fair balance” is categorically different from the question “could the
decision-maker reasonably have decided that the measures strike a fair balance?” what else is the
statement that the court must make a value judgment and that proportionality must be judged
objectively by the court by reference to the circumstances prevailing at the time? On the other
hand, the statement that it would be irresponsible of the court to overrule the judgment of the
school suggests that, if this was a merits review, it was one which allowed a generous area of
judgment to the decision maker. In other words, despite the rhetoric, it is questionable whether
there are many cases where the outcome will differ according to which approach is adopted by
the court. After a good deal of uncertainty and shifting about, we seem to have.
It is of course true that the judges not elected and are not answerable to Parliament. It is also of
course true, that Parliament, the executive and the courts have different functions. But the
function of independent judges charged to interpret and apply the law is universally recognized
as a cardinal feature of the modem democratic state, a cornerstone of the rule of law itself. The
apparent incongruity of a democracy giving a small group of unelected judges the last word on
matters which concern citizens and legislators and on which citizens and legislators may be at
least as well-informed, and capable of reasoned decisions, as judges. In addition to a properly
functioning judiciary, democracies should normally be expected to have citizens and legislators
who care about, and are capable of protecting, the basic rights of members. Hence, there is no
compelling reason to prefer the decisions of judges to legislators where rights are at stake, and
good reasons to believe that doing so detracts from important democratic values and rights. One
do not believe that judicial review is necessary for democracy, it is undemocratic whenever
people are fortunate enough to live in a reasonably functioning democracy, the extent to which
democratic forms of politics can be judicial, rather than legislative, and overestimates the
importance of voting to democratic ideals of freedom, equality, and political participation.

Hence, judicial review, like elected legislatures themselves, there should be a fallible, but
potentially democratic, solution to problems of constitutional government. “Every legal power
must have legal limits, otherwise there is dictatorship. The courts are the only defense of the
liberty of the subject against departmental aggression”. The sentiment expressed in these words
should be fixed securely in the minds of all judges who are called on to decide claims for judicial
review35. “Authority is not needed (although much exists) to show that there is no principle more
basic to our system of law than the maintenance of the rule of law itself and the constitutional
protection afforded by judicial review”36. Judicial Review is a critical check on the power of the
State, providing an effective mechanism for challenging decisions of public bodies to ensure that
they are lawful. Statements at this high level of generality are not controversial. But what has
proved to be problematic has been fleshing them out. Many theorists believe that judges are
superior to other officials in their ability to identify the scope of rights and assign them the
proper weight. Some theorists believe that the superiority of judges is attributable to their
expertise; judges, under this view, form a class of experts on rights. Others believe that judicial
review can be justified on the basis of the nature of the judicial process, and the relative
detachment and independence of judges from political constraints. Judicial review is justified to
the extent that it is likely to contribute to the protection of rights either directly, by correcting
legislative decisions that violate individual rights, or indirectly, by inhibiting the legislature from
making decisions that would violate individual rights. "rights based judicial review is
inappropriate for reasonably democratic societies whose main problem is not that their legislative
institutions are dysfunctional but that their members disagree about rights."37
Ironically, at the very time that the theoretical basis for judicial review is coming under serious
and sustained challenge, there has been a huge expansion in the introduction and use of judicial
review around the world. Nevertheless, this should not discourage democrats, but should
galvanize them to redouble their efforts at revealing the flawed and fragile theoretical
foundations on which the case for judicial review presently rests. Even its supporters, like Fallon
and Dworkin, recognize that the case for judicial review is not as obvious or as easy as is often
35
Pengarah Tanah dan Galian v. Sri Lempah Enterprise [1979] IMLJ 135
36
R (Cart) v. Upper Tribunal [2012] 1 AC 663
37
Jeremy Waldron, The Core of the Case Against Judicial Review [2006] Yale Law Journal, 115 No. 6, pg 1346.
assumed. While Waldron has made a powerful case as to why judicial review and democracy do
not fit well together, I have suggested that the case against judicial review can be made even
stronger. In a society that takes democracy seriously, there is no privileged place for judicial
proconsuls or their scholarly cohorts - citizens can govern best when they govern themselves.
Rights based judicial review is inappropriate for reasonably democratic societies whose main
problem is not that their legislative institutions are dysfunctional but that their members disagree
about rights. Disagreement about rights is not unreasonable, and people can disagree about rights
while still taking rights seriously. In these circumstances, they need to adopt procedures for
resolving their disagreements that respect the voices and opinions of the persons, in their
millions whose rights are at stake in these disagreements and treat them as equals in the process.
At the same time, they must ensure that these procedures address, in a responsible and
deliberative fashion, the tough and complex issues that rights-disagreements raise. Ordinary
legislative procedures can do this, and an additional layer of final review by courts adds little to
the process except a rather insulting form of disenfranchisement and a legalistic obfuscation of
the moral issues at stake in our disagreements about rights.
Judicial review ought to be understood as the institutional embodiment of the right to a hearing.
Hence, as a conceptual matter, it is the judicial process and the judicial process alone that honors
the right to a hearing. Critics of judicial review typically use both instrumentalist arguments
concerning the superior quality of legislative decisions over judicial decisions and non-
instrumentalist arguments concerning the value of democratic participation. Advocates of
judicial review rely only on instrumentalist arguments focusing their attention on the superior
quality of judicial reasoning, judicial deliberation, and on the public-spiritedness of judges as
opposed to populist pressures governing legislatures. Judicial review is a non-instrumentalist,
given its non-instrumentalist nature, is immune to many of the objections raised against judicial
review. Advocates of judicial review can therefore rest assured that the case for judicial review
does not hinge on speculative empirical conjectures. The Supreme Court’s assertion of
independence in 2006 constituted a marked departure from the Court’s previous conduct,
beginning a new chapter in the history of the Supreme Court of Pakistan. Before 2006, judicial
review was rarely used to challenge the executive or legislature. The Supreme Court, for the
most part, remained deferential towards decisions taken by the executive and legislature,
enabling widespread impunity to pervade all levels of government and throughout the
infrastructure of the State. Under the leadership of Chief Justice Chaudhry, particularly since his
reinstatement in 2009, the Supreme Court has been able to distance itself from other branches of
State, taking meaningful steps to establish the rule of law. While few would deny the success of
the Supreme Court in addressing corruption, there have concerns about populism, arbitrariness
and a lack of transparency in the Court’s conduct, especially in exercise of its original
jurisdiction38. Ironically, at the very time that the theoretical basis for judicial review is coming
under serious and sustained challenge, there has been a huge expansion in the introduction and
use of judicial review around the world. Nevertheless, this should not discourage democrats, but
should galvanize them to redouble their efforts at revealing the flawed and fragile theoretical
foundations on which the case for judicial review presently rests. Even its supporters, like Fallon
and Dworkin, recognize that the case for judicial review is not as obvious or as easy as is often
assumed. While Waldron has made a powerful case as to why judicial review and democracy do
not fit well together, In a society that takes democracy seriously, there is no privileged place for
judicial proconsuls or their scholarly cohorts - citizens can govern best when they govern
themselves39. The fairness and political legitimacy of procedural mechanisms depend on the
ends that they serve. If judicial review is reasonably designed to improve the substantive justice
of a society’s political decisions by safeguarding against violations of fundamental rights, then it
is not unfair, nor is it necessarily politically illegitimate. Political legitimacy can flow from
multiple sources. Even insofar as judicial review lacks specifically democratic legitimacy, the
democratic character of other elements of a political regime can partly compensate for this
deficiency. And a shortfall in democratic legitimacy may ultimately be outweighed, as a matter
of overall legitimacy, by the contribution that judicial review can make to the protection of
individual rights. The Framers of the U.S. Constitution were less concerned that the Court would
impede democracy. In the Federalist Papers, Alexander Hamilton predicted that the federal
courts would be the "least dangerous branch" of the federal government, because they had
neither soldiers nor money to enforce their decrees. Hamilton also rejected the idea that the
Supreme Court was inherently anti-democratic: when it struck down federal and state laws in the
38
Feisal Naqvi, The Uncertainty Principle and Judicial Intervention, Express Tribune, 9 October 2013, accessed at:
http://tribune.com.pk/story/615717/theuncertainty-principle-and-judicial-intervention/ Accessed on 6 April 2020 at
01:10 pm
39
Alexander Latham, Dworkin's Incomplete Interpretation of Democracy [2018] 10 Wash. U. Jur. Rev. 155
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol10/iss2/7 Accessed on 12 April 2020 at 01:10
pm
name of the fundamental constitutional principles, he explained, the Court would serve
democracy rather than thwart it, because the Constitution represented the will of the people,
while federal and state laws merely represented the will of the people's temporary and fallible
representatives40. The Court's power of judicial review would also protect limited government
and individual liberty.
40
Alexander Hamilton, Federalist No. 78, [1788] Available at https://www.jstor.org/stable/j.ctt5vm398 Accessed
on April 11, 2020 at 06:15 pm
BIBLIOGRAPHY
CASES:
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, 49(4) PD 221
(1995). Available at https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-
cooperative-village Accessed on April 11, 2020 at 08:28 pm
Regina v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539,
591F per Lord Steyn
R (Countryside Alliance) v. Attorney General [2008] AC 719 at paragraph 45
Regina (Alconbury Developments Ltd and Others) v. Secretary of State for the
Environment, Transport and the Regions [2003] 2 AC 295, p 73 per Lord Hoffmann
Kennedy v. The Charity Commission [2014] UKSC 20
A (FC) v. Secretary of State [2004] UKHL 56
Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857)
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
R (Cart) v. Upper Tribunal [2012] 1 AC 663
Pengarah Tanah dan Galian v. Sri Lempah Enterprise [1979] IMLJ 135
STATUTES & STATUTORY INSTRUMENTS:
Alexander Hamilton, Federalist No. 78 [1788] Available at

https://www.jstor.org/stable/j.ctt5vm398 Accessed on April 11, 2020 at 06:15 pm
James Madison, The Federalist Number 51 [1788],” Available at
https://founders.archives.gov/documents/Madison/01-10-02-0279 Accessed on April 7,
2020 at 02:00 pm
BOOKS:
Abraham, Henry. The Judicial Process: An Introductory Analysis of the Courts of the
United States, England, and France [1998] 7th edn. New York: Oxford University Press
Alexander Mordecai Bickel, The Least Dangerous Branch [1963], available at
http://www.law.uh.edu/faculty/eberman/conlaw/Bickel.pdf accessed on April 10, 2020 at
02:14 am
ONLINE JORURNALS:
Harel, Alon, Rights-Based Judicial Review: A Democratic Justification [2003] 22 Law &
Phil, pg 247–276, Available at:
https://www.researchgate.net/publication/226472274_Rights-
Based_Judicial_Review_A_Democratic_Justification Accessed on April 5, 2020 at 05:07
pm
Lever, Annabelle, Democracy and judicial review: are they really incompatible?
Perspectives on Politics [2009] 7 (4). pp. 805-822. Available at:
http://eprints.lse.ac.uk/23097/ Accessed on April 5, 2020 at 05:07 pm
Jeremy Waldron, The Core of the Case Against Judicial Review [2006] Yale Law
Journal, 115 No. 6, pg 1346. Available at:
https://digitalcommons.law.yale.edu/ylj/vol115/iss6/3 Accessed on April 5, 2020 at
05:07 pm
Amy Street, Judicial Review and the Rule of Law Who is in Control? [2013] Available at:
https://consoc.org.uk/wp-
content/uploads/2013/12/J1446_Constitution_Society_Judicial_Review_WEB-22.pdf
Robert Griffiths, Democracy and Judicial Review [2015] available at
http://robertgriffithsqc.co.uk/democracy-and-judicial-review/ accessed on April 10, 2020
at 01:26 am
Bruce A. Ackerman, We the People: Foundations [1991] pg. 223 available at
https://onlinelibrary.wiley.com/doi/abs/10.2307/3325482 accessed on April 10, 2020 at
02:14 am
William Reddinger, Is Judicial Review Undemocratic? [2017] Available at

https://www.learnliberty.org/blog/is-judicial-review-undemocratic/ Accessed on April 11,
2020 at 06:15 pm
COMMAND PAPERS:
Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution [1984] 93 Yale
Law Journal 1013, pg 1027 Available at
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6870&context=ylj
Julian N. Eule, Judicial Review of Direct Democracy [1990] The Yale Law Journal, Vol.
9, pp. 1503-1590 Available at
Dieter Grimm, Constitutional Adjudication & Democracy [1999] 33 Israel Law Review
pg. 193, 201
Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution [1984] 93 Yale
Law Journal 1013, pg 1027 Available at
Alexander Latham, Dworkin's Incomplete Interpretation of Democracy [2018] 10 Wash.
U. Jur. Rev. 155 Available at:
https://openscholarship.wustl.edu/law_jurisprudence/vol10/iss2/7 Accessed on 12 April
2020 at 01:10 pm
NEWSPAPER ARTICLES:
Feisal Naqvi, The Uncertainty Principle and Judicial Intervention, Express Tribune, 9
October 2013, accessed at: http://tribune.com.pk/story/615717/theuncertainty-principle-
and-judicial-intervention/ Accessed on 6 April 2020 at 01:10 pm

Judicial Review by IMRAN AYAZ (LL.M.) (LL.B.)

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Judicial Review by IMRAN AYAZ (LL.M.) (LL.B.)

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JUDICIAL REVIEW IMRAN AYAZ

Judicial review is vulnerable to attack on two fronts. It does not, as it

It would require an uncommon portion of fortitude in the judges to do their duty as

importance of voting to democratic ideals of freedom, equality, and political participation.

STATUTES & STATUTORY INSTRUMENTS:

Alexander Hamilton, Federalist No. 78 [1788] Available at

William Reddinger, Is Judicial Review Undemocratic? [2017] Available at

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