Posted by / Tuesday 22 March 2016 / No comments

Arguments against Judicial Review

Justice, Statue, Lady Justice

Judicial review refers to the powers granted to the judiciary, under the constitution, to declare null and void, any actions taken by the legislature and the executive or any Administrative Officer acting on behalf of both if those actions violate the powers allocated to them under the constitution.


It is undemocratic
It is undemocratic for judges to nullify actions of the executive or legislature. This is because the judges are not elected directly by the people, and therefore do not technically represent them. But the legislature and executive are true representatives of the people. It is, therefore, wrong for an unrepresentative body like the judiciary to be given the power to set aside actions of the representative institutions.

Violates the principle of Separation of Powers
The concept of separation of Powers states that the three arms of government, that is, the Judiciary, Legislature and the Executive must be separate in functions, powers and personnel. The power of Judicial Review, however, gives powers to the Judiciary to interfere with the operations of the other two organs of government. This violates principles under which Separation of Powers rests.

Creates Conflicts between the Judiciary and other organs
At times when the judiciary nullifies actions of the legislature or executive, it threatens to create conflicts between these organs and the judiciary. In Ghana, in the famous "Sallah vrs the Government" case, the exercise of judicial review under the Second Republic created tension between the judiciary and the government when the Prime Minister refused to comply with the ruling of the judiciary. 

Use of Judicial Review to thwart Government Programmes
Judicial review is at times employed by the judiciary to kill programmes of social and economic reforms of the government. In India, for example, efforts by the Indira Ghandi government to introduce land reforms in India was nullified by the Supreme Court. 

Misuse of Power Judicial Review
At times, judges can use judicial reviews to prosecute their own agenda. It has been suspected that sometimes, the actions of the executive or the legislature is not in contravention of the constitution, but in a deliberate attempt to prevent a government programme from taking off, their actions nullified.

No reciprocal check on the judiciary
Under Judicial Independence, none of the other two organs, the executive and the legislature, can substantially interfere with the work of the judiciary. So while Judicial Review allows the judiciary to check the legislature and the executive, the executive and the legislature do not have the reciprocal powers to check the judiciary.

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