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Modalities of Review

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Judicial Review of Legislation

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 5))

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Abstract

In reviewing legislative norms, two major modalities can be distinguished. The first relates to the stage when review first becomes possible during the legislative process, while the second relates to whether norms may be reviewed in an abstract or concrete setting. These modalities can obviously have a far-reaching effect on the scope of judicial review by determining when and how legal norms are scrutinised. This chapter investigates the distinguished modalities of review in the United Kingdom, the Netherlands and South Africa. Do these systems employ abstract review of bills and/or abstract or concrete review of legislation? And what may be the reasons for any differences found?

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Notes

  1. 1.

    See the definition of judicial review in § 8.

  2. 2.

    This distinction is explained in § 13.

  3. 3.

    Rautenbach and Malherbe, supra note 22, at 244–245.

  4. 4.

    Van der Hoeven, supra note 258, at 787, considers that the abstract review of bills reduces the chance of difficult constitutional questions arising at a later stage.

  5. 5.

    Cf. J.H. Reestman, Constitutionele toetsing in Frankrijk: De Conseil constitutionnel en de grondwettigheid van wetten en verdragen (Nijmegen: Ars Aequi Libri, 1996); Koopmans, supra note 6, at 34, 69–76; Allan R. Brewer-Carías, Judicial Review in Comparative Law (Cambridge: Cambridge Universtiy Press, 1989), at 251–260.

  6. 6.

    According to s. 61 of the French Constitution (1958), an ordinary bill may be referred to the Council by the President of the Republic, the Prime Minister, the President of either the Senate or National Assembly; or, since 1974, by at least sixty members of either the Senate, amounting to 20% of its membership, or the Assembly, amounting to about 10% of its membership.

  7. 7.

    Stone Sweet, supra note 267, at 198, explains: “The rules governing the exercise of constitutional review differ radically from the rules governing parliamentary decision-making. This difference is exactly what attracts the opposition to the court, since under majority decision rules, the opposition always loses”.

  8. 8.

    S. 62 of the French Constitution (1958).

  9. 9.

    Until the constitutional reforms of 2008, the Council presented the archetypal model of prior review in that the constitutionality of legislation could never be challenged before the courts. However, it is now possible for other courts to refer constitutional issues that arise from legislation to the Council, thereby allowing for unforeseen circumstances to be judicially factored.

  10. 10.

    Rautenbach and Malherbe, supra note 22, at 245.

  11. 11.

    S. 93(2) of the German Constitution (1949). Prior review is also allowed in Germany, but then in respect of treaties still to be ratified.

  12. 12.

    S. 4 ibid. Cf. Brewer-Carías, supra note 429, at 210–211.

  13. 13.

    S. 2 of the Special Majority Act on the Court of Arbitration of 6 January 1989. Even though political organs do not have to show a particular interest to enjoy standing, while private parties must show that the contested law could negatively affect them, the Belgian Constitutional Court does not exercise concrete control in the latter cases. The Court does not solve any dispute in such matters but only pronounces judgment on the constitutionality of the contested legislative norms.

  14. 14.

    S. 3(1) of the Special Majority Act on the Court of Arbitration of 6 January 1989. Cf. Peeters, supra note 314, at 475 et seq.

  15. 15.

    Brewer-Carías, supra note 429, at 211. The obligation of ordinary courts in many systems of judicial review to put a prejudicial question to a constitutional court, does not detract from the concrete nature of the review. This is because judicial review is still brought to bear on a particular dispute, if not by the same judge who has to decide the facts of the case between the parties.

  16. 16.

    Concrete review is traced to art. III of the United States Constitution that extends the courts’ jurisdiction to matters that involve either a case or controversy; Brewer-Carías, supra note 429, at 144–145.

  17. 17.

    This power is interpreted as excluding advisory opinions, but not a declaration of rights.

  18. 18.

    E.g. an exception of sorts was recognised concerning the constitutionality of abortion in Roe v. Wade, 410 US 113 (1973). The matter was heard, even though the judicial appeal process would have lasted longer than the average pregnancy. In other words, by the time a judgment was handed down, the pregnancy would have run its course, thereby rendering the question of whether abortion was constitutional purely academic.

  19. 19.

    Cf. Alec Stone Sweet and Martin Shapiro, On Law, Politics and Judicialization (Oxford: Oxford University Press, 2002), at 352.

  20. 20.

    Consider John C. Reitz, “Political Economy and Abstract Review in Germany, France and the United States”, in Sally J. Kenney, William M. Reisinger and John C. Reitz (eds.), Constitutional Dialogues in Comparative Perspective 62 (Basingstoke: Macmillan, 1999), who defines abstract review as “facial challenges to the constitutionality of legislation at the behest of certain official parties with automatic standing”.

  21. 21.

    E.g. s. 3 of the HRA.

  22. 22.

    S. 33 of the Scotland Act 1998 (c. 46): “(1) The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision. (2) Subject to subsection (3), he may make a reference in relation to a Bill at any time during- (a) a period of four weeks beginning with the passing of the Bill, and (b) any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 36(5). (3) He shall not make a reference in relation to a Bill if he has notified the Presiding Officer that he does not intend to make a reference in relation to the Bill, unless the Bill has been approved as mentioned in subsection 2(b) since the notification.”

  23. 23.

    S. 19 of the HRA. See also Robert Hazell, “Pre-legislative Scrutiny”, Pub. L. 477 (2004).

  24. 24.

    Cf. Wadham et al., supra note 57, at 13–14; David Feldman, “Parliamentary Scrutiny of Legislation”, Pub. L. 323 (2002).

  25. 25.

    Cf. JCHR, “The Committee’s Future Working Practices”, 23rd Report (2005–2006), August 2006; JCHR, “The Work of the Committee in 2007 and the State of Human Rights in the United Kingdom”, 6th Report (2007–2008), February 2008, at 36–39. Available from http://www.parliament.uk/ (last accessed on 19 November 2009).

  26. 26.

    On common law rights, see § 26.

  27. 27.

    Cf. Wadham et al., supra note 57, at 53, 70–76.

  28. 28.

    S. 3 of the HRA read together with s. 6.

  29. 29.

    Cf. Gearty, supra note 84, at 78–83, 157–167.

  30. 30.

    John Bell, “Reflections on Continental European Supreme Courts”, in Guy Canivet and Mads Andenas (eds.), Independence, Accountability, and the Judiciary 253 (London: British Institute of International and Comparative Law, 2006), at 260.

  31. 31.

    Gillick v. West Norfolk and Wisbech Area Health Authority, [1986] AC 112, at 193–194.

  32. 32.

    R. (Burke) v. The General Medical Council, [2005] EWCA Civ 1003.

  33. 33.

    Ibid., at par. 1.

  34. 34.

    Ibid., at par. 16.

  35. 35.

    Ibid., at paras. 17–18. An Official Solicitor defends the rights of those who are not capable of doing so themselves, such as children.

  36. 36.

    Ibid., at par. 21.

  37. 37.

    Ibid., at par. 22.

  38. 38.

    R. v. Her Majesty’s Attorney General (Appellant) Ex parte Rusbridger (Respondent), supra note 323.

  39. 39.

    Ibid., at paras. 1, 9–10.

  40. 40.

    Ibid., at par. 28.

  41. 41.

    Ibid., at par. 36 (per Lord Hutton).

  42. 42.

    Ibid., at par. 45 (per Lord Scott of Foscote), at paras. 61–62 (per Lord Walker of Gestingthorpe).

  43. 43.

    David Feldman, “Institutional Roles and Meanings of ‘Compatibility’ Under the Human Rights Act 1998”, in Helen Fenwick, Gavin Phillipson and Roger Masterman (eds.), Judicial Reasoning under the Human Rights Act 87 (Cambridge: Cambridge University Press, 2007), at 104–105.

  44. 44.

    E.g. Dudgeon v. The United Kingdom of 22 October 1981, Publ. Eur. Court H.R., Series A, no. 45. In this case a homosexual man successfully complained of laws that criminalised homosexual acts although he was not prosecuted under them. Similarly, see Norris v. Ireland of 26 October 1988, Publ. Eur. Court H.R., Series A, no. 142.

  45. 45.

    The stress lies on an element of abstract review, as the European Court of Human Rights is adamant that its review does not amount to abstract review as such. See Klass v. Germany of 6 September 1978, Publ. Eur. Court H.R., Series A, no. 28, at par. 33.

  46. 46.

    See again § 129.

  47. 47.

    E.g. in R. v. Her Majesty’s Attorney General (Appellant) Ex parte Rusbridger (Respondent), supra note 323, a declaration of incompatibility was sought in respect of an act of parliament. Lord Steyn noted the generous approach taken by the Strasbourg Court in deciding who was a “victim” in terms of the European Convention, but nonetheless ruled that the requirement was not applicable to the facts before him (at par. 21).

  48. 48.

    See Wadham et al., supra note 57, at 95, who refer to Taylor v. Lancashire County Council and Secretary of State for the Environment, Food and Rural Affairs, [2005] EWCA Civ 284, (2005) HRLR 17.

  49. 49.

    By the abstract review of bills is not meant a matter such as the decision in Hoge Raad, 27 January 1961, NJ 1963, 248 (Van den Bergh), where the adoption procedure of a law is questioned after its adoption. This was clearly review of a legislative enactment, while the focus here rests on review taking place during the legislative process. For a discussion of the Van den Bergh case and judicial review of legislative procedure in an a posteriori setting, see §§ 245–247.

  50. 50.

    Ondernemingskamer Hof Amsterdam (Enterprise Division of the Amsterdam Court of Appeal), 18 February 1999; Ondernemingskamer Hof Amsterdam, 22 July 1999; Kortmann, supra note 348, at 378–379; C.A.J.M. Kortmann, “Is een wetsvoorstel onschendbaar?”, 48 Ars Aequi 473 (1999).

  51. 51.

    Gerechtshof te ’s-Gravenhage (The Hague Court of Appeal), 27 September 1990, AB 1991, 85.

  52. 52.

    On the weak review of acts of parliament in the Netherlands, see §§ 40, 93, 311.

  53. 53.

    Hoge Raad, 19 November 1999, NJ 2000, 160; Hoge Raad, 14 April 2000, NJ 2000, 713 C.A.J.M. Kortmann, “Nogmaals: Is een wetsvoorstel onschendbaar?”, 49 Ars Aequi 107 (2000).

  54. 54.

    P.B. Cliteur, Constitutionele toetsing (’s-Gravenhage: Teldersstichting, 1991), at 78–79.

  55. 55.

    Secs. 73–75 of the Constitution; Wet op de Raad van State, 9 March 1962; C.A.J.M. Kortmann, supra note 348, 286–288.

  56. 56.

    Cf. Hirsch Ballin, supra note 374, at 162–163.

  57. 57.

    Parliamentary Proceedings II 2004/2005, 29 986, no. 2; Parliamentary Proceedings II 2004/2005, 29 986, no. 5; Leenknegt and Van der Schyff, supra note 114, at 1141–1142.

  58. 58.

    Wet op de rechterlijke organisatie, 18 April 1827, s. 74.

  59. 59.

    Parliamentary Proceedings II, 2002–2003, 28, 331, A.

  60. 60.

    Wet op de rechterlijke organisatie, 18 April 1827, s. 95.

  61. 61.

    Parliamentary Proceedings II, 2002–2003, 28, 331, no. 6.

  62. 62.

    On review in terms of s. 94 of the Constitution, see § 44.

  63. 63.

    Hoekstra, supra note 135, at 46.

  64. 64.

    See generally about the questions and problems related to the legislative process in the Netherlands, P.P.T Bovend’Eert, “De wetgevende macht van het parlement”, in J.Th.J. van den Berg, L.F.M. Verhey and J.L.W. Broeksteeg (eds.), Het parlement 91 (Nijmegen: Wolf Legal Publishers, 2007).

  65. 65.

    On this, consult Peter Rehorst, “Constitutional Jurisdiction in the Context of State Powers: Types, Contents and Effects of the Decisions on the Constitutionality of Legal Regulations”, 9 Hum. Rights L. J. 11 (1988), at 13.

  66. 66.

    E.g. Hoge Raad, 2 February 1982, NJ 1982, 424, where the Supreme Court held that the right to equality in art. 26 of the International Covenant on Civil and Political Rights (1966) was directly applicable to disputes before courts in the Netherlands.

  67. 67.

    Cf. Van Houten, supra note 107, at 230.

  68. 68.

    Rechtbank ‘s-Gravenhage, 18 April 2007 (Society of Local Councils); European Charter of Local Self-Government of 1985, ETS no. 122.

  69. 69.

    Hoge Raad, 3 September 2004, RvdW 2004, 102.

  70. 70.

    Zoethout et al., supra note 136, at 31, 40, Appendix 2, who state that decentralised abstract review of posited norms is difficult to imagine as part of future reforms in the Netherlands. However, it is already a distinct possibility in the current system, as the examples mentioned in the text show.

  71. 71.

    Sap, supra note 367, at 599.

  72. 72.

    Consider the observations about the Dutch poldermodel democracy in § 42.

  73. 73.

    S. 98(2), (9) of the interim Constitution.

  74. 74.

    Secs. 167(5), 170, 39(2) of the Constitution.

  75. 75.

    Khosa and Others v. Minister of Social Development and Others; Mahlaule and Others v. Minister of Social Development and Others, 2004 (6) BCLR 569 (CC), 2004 (6) SA 505 (CC), at paras. 90–91; Doctors for Life International v. Speaker of the National Assembly, supra note 278, at paras. 62, 65.

  76. 76.

    See § 70.

  77. 77.

    Secs. 79, 121 of the Constitution.

  78. 78.

    Ex parte President of the Republic of South Africa In re: Constitutionality of the Liquor Bill, 2000 (1) BCLR 1 (CC), 2000 (1) SA 732 (CC); Rassie Malherbe, “Die drankwetsontwerp: Vooraf kontrole en grondwetlike gesagsverdeling verder omlyn”, 63 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 321 (2000). See also In re: Constitutionality of the Mpumalanga Petitions Bill, 2001 (11) BCLR 1126 (CC), 2002 (1) SA 447 (CC).

  79. 79.

    Doctors for Life International v. Speaker of the National Assembly, supra note 278, at par. 54. The Court only made mention of the president in its judgment, but there seems to be no reason why the same should not apply to a provincial premier who requests prior review.

  80. 80.

    Ibid., at par. 71. Commenting on this, if the Constitution’s drafters went to the effort of describing prior review at the behest of the president or a premier in so many words, it is probably reasonable to assume that they meant for prior review to only take place under those circumstances. Prior review significantly transgresses the separation of powers, and this militates against simply deducing the possibility of such review (e.g. before the adoption of a bill by parliament) if the Constitution does not expressly allow it.

  81. 81.

    Secs. 104(1)(a), 142 of the Constitution.

  82. 82.

    Secs. 143, 144 of the Constitution. Cf. Stuart Woolman, “Provincial Constitutions”, in Stuart Woolman and Theunis Roux (eds.), Constitutional Law of South Africa 21i (Cape Town: Juta, 2nd ed., 2006); Rassie Malherbe, “The Role of the Constitutional Court in the Development of Provincial Autonomy”, SA Pub. L. 255 (2001).

  83. 83.

    In re: Certification of the Constitution of the Province of KwaZulu-Natal 1996, 1996 (11) BCLR 1419 (CC), 1996 (4) SA 1098 (CC). This province’s constitution usurped too much power, leaving the Constitutional Court to hold, at par. 47, that it was “fatally flawed”. And regarding the Western Cape: In re: Certification of the Constitution of the Western Cape, 1997, 1997 (9) BCLR 1167 (CC), 1997 (4) SA 795 (CC); In re: Certification of the Amended Text of the Constitution of the Western Cape, 1997, 1997 (12) BCLR 1653, 1998 (1) SA 655 (CC). Cf. E.F.J. Malherbe, “Provinsiale grondwette: ‘n Barometer van provinsiale outonomie?”, J. S. Afr. L. 344 (1998).

  84. 84.

    S. 80 of the Constitution.

  85. 85.

    S. 80(3) of the Constitution.

  86. 86.

    S. 122 of the Constitution.

  87. 87.

    Secs. 98(2)(d), 106(4)-(5) of the interim Constitution. E.g. concerning provincial bills In re: The School Education Bill of 1995 (Gauteng), 1996 (4) BCLR 537 (CC), 1996 (3) SA 165 (CC); In re: KwaZulu-Natal Amakhosi and Iziphankanyiswa Amendment Bill of 1995; In re: Payment of Salaries, Allowances and Other Privileges to the Ingoyama Bill of 1995, 1996 (7) BCLR 903 (CC), 1996 (4) SA 653 (CC), and regarding a national bill In re: The National Education Policy Bill No. 83 of 1995, 1996 (4) BCLR 518 (CC), 1996 (3) SA 289 (CC).

  88. 88.

    Cf. In re: The School Education Bill of 1995 (Gauteng), ibid., at par. 2.

  89. 89.

    S. 122 of the Constitution.

  90. 90.

    As the Constitutional Court stressed in Zantsi v. Council of State, Ciskei, 1995 (10) BCLR 1424 (CC), 1995 (4) SA 615 (CC), at par. 7: “It is not ordinarily desirable for a court to give rulings in the abstract on issues which are not the subject of controversy and are only of academic interest (…).” As examples of concrete review can be mentioned: S. v. Makwanyane, supra note 32, where the death sentences of the applicants were commuted to life imprisonment, and S. v. Lawrence; S. v. Negal; S. v. Solberg, 1997 (10) BCLR 1348 (CC), 1997 (4) SA 1176 (SA), where the applicants unsuccessfully sought the quashing of their convictions for trading on Sunday because their convictions did not violate the right to freedom of religion and conscience guaranteed in the Bill of Rights.

  91. 91.

    Zantsi v. Council of State, Ciskei, supra note 514, at paras. 2–3.

  92. 92.

    JT Publishing (Pty) Ltd v. Minister of Safety and Security, 1996 (12) BCLR 1599 (CC), 1997 (3) SA 514 (CC), at par. 16.

  93. 93.

    Fereirra v. Levin; Vryenhoek v. Powell, 1996 (1) BCLR 1 (CC), 1996 (1) SA 984 (CC), at par. 35. See also §§ 165, 235; Zantsi v. Council of State, supra note 514, at par. 7.

  94. 94.

    See again §§ 86–89.

  95. 95.

    R. v. Her Majesty’s Attorney General (Appellant) Ex parte Rusbridger (Respondent), supra note 323, at par. 36 (per Lord Hutton).

  96. 96.

    See §§ 192, 196.

  97. 97.

    See §§ 201–203.

  98. 98.

    See §§ 178–179 on the United Kingdom and §§188–193 on the Netherlands.

  99. 99.

    Moreover, the Constitutional Court has only been called upon twice to certify such texts, see § 203.

  100. 100.

    Doctors for Life International v. Speaker of the National Assembly, supra note 278, at par. 71. See again par. 71.

  101. 101.

    On the certification of the Constitution, see § 201 and also §§ 68, 70.

  102. 102.

    Cf. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).

  103. 103.

    As S. Holmes, “Precommitment and the Paradox of Democracy”, in Jon Elster and Rune Slagstad (eds.), Constitutionalism and Democracy 231 (Cambridge: Cambridge University Press, 1988), defined the relationship between democracy and constitutionalism.

  104. 104.

    Brewer-Carías, supra note 429, at 209, explains that under such circumstances the only purpose is to maintain the hierarchy of legal norms and protect the constitution.

  105. 105.

    E.g. the South African Constitutional Court had to consider a bill quite exhaustively In re: The School Education Bill of 1995 (Gauteng), supra note 511, while in Christian Education South Africa v. Minister of Education, 2000 (10) BCLR 1051 (CC), 2000 (4) SA 757 (CC), it had to confine itself to the question whether the prohibition on capital punishment in independent schools on the basis of s. 10 of the Schools Act, no. 84 of 1996, was constitutional.

  106. 106.

    Klug, supra note 172, at 52, explains how the white-dominated National Party insisted on this process as it realised that if left to the will of the majority only, the Party would have little influence over the constitution-making process.

  107. 107.

    Hirschl, supra note 6, at 50–99, 216–218. As Pedro Magalhaes, The Limits to Judicialization: Legislative Politics and Constitutional Review in Iberian Democracies (Doctoral dissertation, Ohio State University, 2002), at 21 notes: “When the political actors that dominate the constitution-making process expect to lack control over legislatures in the future, judicial review of legislation may emerge as an institution designed to protect their interests.” (Quoted in Hirschl, at 41.)

  108. 108.

    Ginsburg, supra note 5, at 33.

  109. 109.

    Holmes, supra note 527, at 235.

  110. 110.

    Cf. Erhard Blankenburg, “’Warum brauchen wir kein Verfassungsgericht?’: Die niederländische Diskussion im Licht der deutschen Erfahrung”, in Anita Böcker et al., Migratierecht en rechtssociologie, gebundeld in Kees’ studies (Nijmegen: Wolf Legal Publishers, 2008), at 303, 310, who explains that the Dutch parliament has been a source of protection for rights, thereby minimising the need for judicial review.

  111. 111.

    To paraphrase Ginsburg, supra note 5, at 33.

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  1. School of Law, Tilburg University, PO Box 90153, 5000, LE, Tilburg, The Netherlands

    Dr. Gerhard Van Der Schyff

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Van Der Schyff, G. (2010). Modalities of Review. In: Judicial Review of Legislation. Ius Gentium: Comparative Perspectives on Law and Justice, vol 5. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9002-7_5

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