Free Judicial Review Essay Sample
The power of public institutions and bodies must be guided by the public law, which sets the legal principles to control them. Judicial review is the process through which judicially appraises the actions of the executives and the judiciary arms of the government. In this case, there are courts given the power to undertake the process in an attempt to invalidate or affirm an action disputed against the actions of the government. It is one of the concepts demonstrating the separation of power, where the judicially as an arm of the government is involved in the process of monitoring the executive, which is also an arm of the government (Seidman, 2001).
A constitution, in many democratic nations, is the supreme guide to the system of government and decision making process. Judicial review is based on how the constitutional provisions are observed by decision makers in the government (Prakash & Yoo, 2003). It is highly practiced in democratic nations such as United State, Germany, Netherlands, and Brazil, among others.
A decision by a public body or official can be challenged on various grounds. First, when a decision maker made a decision of which he had no power to, or the improper use of power. This is particularly as outlined in the constitution (Seidman, 2001). Secondly, when the decision made is irrational in that no sensible individual ought to have made such a decision. Thirdly, when it is perceived that, decision making and the procedure followed is unfair and/or biased, and therefore, some people or an individual was disadvantaged. Lastly, when the decision made breaches or denies any of human rights as outlined in the Human Rights Act.
There are several stages through which process of judicial review must take. The person (claimant) affected by the decision that need to be challenged, sends a letter to the decision maker, who in this case is termed as the defendant (Lipkin, 2000). In this letter, he outlines the reasons on which he thinks the decision was unlawful. In receiving the letter, the two parties may undertake negotiations. Where the defendant does not respond, or they never come into an agreement, the claimant applies for a judicial review in a court of law.
In a case where a claimant needs an urgent protection or action, the court can offer a temporally solution before the review is made. At this stage, the defendant can brief the court by giving an explanation why they think it was a lawful decision. The court can refuse to offer the request, and the claimant will then apply for the reconsideration at the same court. If the court refuses to grant the permission, he has a chance to appear in the court of appeal within nine days.
The parties can reconsider negotiation when the permission for the judicial review is granted. In this case, the parties may agree, and a settlement takes place to bring the process to an end. If no settlement takes place, the defendant is required within thirty to forty five days to give details of why he thinks the decision was unlawful, as well as any written evidence should be provided.
The judge will then consider the case at hand in detail. This takes a day, few days, few weeks, or months, depending on the complexity of the case. The two parties are represented by barristers. The judicial review case does not accept oral evidence in most countries. After the hearings, the court may take few weeks before making the final verdict. In case of urgent cases, the verdict will take the shortest time possible.
When one of the parties feels on various grounds that the verdict was not fair, he can appeal to the Court of Appeal. In this case, the appeal must be granted before the process starts again. The party making an appeal is normally given fourteen days to do so, after the verdict.
The history of judicial review dates back in the year 1803, when a number of courts ruled against the legislature. This took place in United State of America between the years 1890 and 1986, when several state courts and supreme courts, took place in the process of policy formulation. To protect itself against the legislature and the executive aims, the judiciary embraced the concept of judicial review. As from the year 1970 to 1993, the judicial review in United States of America concentrated on four main issues including campaigns, election, worker’s compensation, and unemployment compensation (Lipkin, 2000). To date, judicial review can to some extent overturn the rule of the legislative and executive arms of the government.
The judicial review strikes the balance in the government, and brings about the checks and balance in the government. The judiciary in this case is not granted excess power as the decisions on judicial reviews are guided by the constitution, which is the supreme law of the land (Seidman, 2001). In my own opinion, judicial review should be expanded to protect the judiciary, individuals, and the rights of citizens against the legislature and executive arms of the government. On the other hand, it will ensure that the rule of law and order in the government of the day.