Gerhard van der Schyff

Content of Review

The third element of judicial review discussed – in addition to its judicial fora and modalities, which were addressed in previous chapters – is that of its content. What is it that is actually scrutinised when a court tests the quality of legislation? Taken at its broadest, the content of review can pertain to the legality and legitimacy of a norm. Legality, simply put, involves the technical issue whether the norm in question is a legal one, while legitimacy concerns its material value as measured against fundamental rights. A court must always decide if what it is presented is actually a law, otherwise any norm can be pleaded before judges without them having the ability to establish if it really is a law. The greater the bench’s powers to analyse a norm’s legal pedigree, the more the judiciary ventures onto the middle ground between it and the legislature. This chapter explores the contours of judicial review in the United Kingdom, the Netherlands and South Africa as far as its content is concerned.

Judicial Review and Democracy

The fact that the United Kingdom, the Netherlands and South Africa have begun to interpret and apply the separation of powers in a way that allows the judiciary to check the exercise of legislative power, tells us very little about the justification of this development. A legal construction such as the judicial review of legislation needs to be justified if it is to enjoy any legitimacy. However, it is probably safe to say that justifying judicial review is a particularly vexing question that is unlikely ever to result in political or academic consensus. One of the main reasons for this is such review’s perceived inconsistency with popular democracy. Why are unelected judges to be allowed to test the constitutionality of laws passed by democratically-elected parliamentarians? In essence, should the will of majoritarian decision-making models be questioned or even overturned by models that do not ascribe to the same principle? This chapter explores the justification of judicial review against the background of democratic objections and concludes that the principle of judicial review is justified. The real question to be answered deals with how such review has to be structured.

Consequences of Review

The consequences of identifying an intrusion upon higher law can be placed along a spectrum of possible outcomes of which setting aside is but one of the available options. The one end of this spectrum can be classified as “strong” review, the other as “weak” review. Strong-form review amounts to leaving the legislature no room to respond to a court that strikes down legislation on account of it violating higher law, bar an amendment of such higher law. Weak-form review refers to systems of judicial review where it is constitutionally foreseen that the judiciary does not enjoy the last word in interpreting and applying higher law, but where it has to share this jurisdiction to varying degrees and through different methods with the legislature. This chapter studies strong- and weak-form review in the United Kingdom, the Netherlands and South Africa in order to determine to which extent these forms are to be found in the three systems.

Modalities of Review

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?

Fora of Review

In cultivating a proper understanding of judicial review, attention is not only to be paid to the structure and reasoning of a judgment, but also to the court handing down the judgment and its place in the judicial system. The principle distinction that is usually made in characterising courts is that between centralised and decentralised (or diffuse) review. In other words, does a system have a special constitutional court and what is its relation to other courts when it comes to its adjudicative powers? A wide middle ground is possible, as a system can allow for total centralisation or decentralisation with a host of options in between. This chapter studies the reasons for choosing centralised and/or decentralised review in the United Kingdom, the Netherlands and South Africa.