LLB CONSTITUTIONAL LAW - JUDICIAL REVIEW AND JUDICIAL INDEPENDENCE ( Part 1)

Judicial Review & Judicial Independence: Key Principles and Limits

In this discussion, we explore the foundational concepts and limits of judicial review, its historical evolution, and its relevance under Ghana’s 1992 Constitution. Judicial review is a cornerstone of constitutional law, enabling courts to invalidate unconstitutional legislation and scrutinize administrative actions for legality. This authority ensures adherence to the rule of law, where laws, not individuals, govern actions.

Meaning of Judicial Review:
Judicial review encompasses the judiciary's power to examine and rectify decisions or orders of governmental or public institutions. It reflects the principle of checks and balances, where the judiciary interprets and enforces constitutional boundaries. Justice SA Brobbey describes it as a supervisory mechanism that distinguishes between procedural errors and errors of fact.

Historical Perspective:
The concept dates back to Marbury v. Madison (1803), which established judicial review in the U.S., asserting that courts have the authority to invalidate unconstitutional legislative acts. In Ghana, judicial review evolved differently due to its colonial heritage. Cases such as Thomas Bonham v. College of Physicians (1610) and Ghana's Lardan v. Attorney-General (No. 2) highlight the judiciary's role in ensuring legislative compliance with constitutional mandates.

Judicial Review under Military and Pre-1992 Constitutions:
During military rule and under earlier constitutions, judicial review faced limitations. For instance, under the 1960 Republican Constitution, courts could only challenge entrenched clauses, significantly narrowing their scope. The case of Re Akoto & Seven Others illustrates the judiciary’s constrained role. Similarly, under military governments like the PNDC, the absence of rule of law and judicial independence led to arbitrary abuses of power.

Judicial Review under the 1992 Constitution:
The 1992 Constitution reasserts judicial review as a critical tool for upholding constitutional supremacy. Articles 2, 125, and 132 confer supervisory jurisdiction on the Supreme Court, while Article 141 extends this power to the High Court over lower courts. Landmark cases like the 31st December Case and Mensima v. Attorney-General demonstrate the courts’ ability to strike down unconstitutional legislation and administrative actions.

Judicial Activism vs. Judicial Restraint:
A significant debate in judicial review is the balance between activism and restraint. Activism implies a proactive judiciary shaping policy, while restraint favors minimal interference in legislative or executive functions. Striking this balance is critical to preserving democracy and the separation of powers.

Critiques of Judicial Review:
Some argue that judicial review undermines democracy by empowering unelected judges to override legislative decisions. Others contend that it disrupts the separation of powers, tilting the balance in favor of the judiciary. Despite these critiques, judicial review remains essential in safeguarding constitutional governance.

Remedies in Judicial Review:
The judiciary employs remedies like certiorari, mandamus, prohibition, habeas corpus, and injunctions to enforce constitutional and legal compliance. These tools ensure that government actions align with the rule of law.

Judicial review and independence are fundamental to constitutional democracies. They ensure that no branch of government exceeds its authority, preserving citizens' rights and the integrity of the legal system. The discussion continues to evolve, reflecting the dynamic interplay between law and governance.