Court's Scalpel: Can They Sever Law's Validity?

In constitutional democracies, the concept of 'judicial review' allows citizens to challenge the actions of government officials and the validity of laws. Courts can invalidate parts of a law deemed unconstitutional, with the power to nullify legislation that violates the Constitution. This is based on the principle of the 'rule of law', where both citizens and government officials are subject to the law. In Canada, the Constitution Act, 1982, guarantees individuals the right to challenge legislation that does not conform to the Constitution, while in the US, the Supreme Court has the power to invalidate laws deemed not appropriate or not proper. The process of striking down involves finding the invalidity of the entire provision or law, while reading down allows courts to limit the reach of legislation by declaring it ineffective to a defined extent.

Judicial review on administrative acts

Judicial review of administration is the core of administrative law. It is a process that scrutinizes the legal competence of public authorities and their decisions or administrative acts. The purpose of judicial review is to ensure the legality of administrative actions and protect citizens from the administration. While it cannot compel the state to act in a particular way, it can invalidate administrative acts or decisions on certain grounds, such as the competence of the public authority, the extent of its legal powers, the adequacy and fairness of the procedure, the evidence considered, and the nature and scope of discretionary power.

The effectiveness of judicial review on administrative acts varies internationally. For example, Sweden and France subject most discretionary powers to judicial review, excluding those related to foreign affairs and defense. In contrast, some countries focus primarily on procedure, determining whether the correct procedure was followed rather than examining the substance of the decision.

In the context of French administrative law, judicial review is reactive, meaning that judges are confined to the specific claims made and cannot judge beyond them. As a result, a judge cannot annul a decision in its entirety when only specific parts are challenged, except in cases of "moyens d'ordre public," where the public interest is involved.

Judicial review of administrative acts in Canada, as outlined in Section 52(1) of the Constitution Act, 1982, involves addressing inconsistencies with the Charter and determining the extent of unconstitutionality. Courts have the power to "strike down" or invalidate laws or provisions found to be unconstitutional. This process involves rendering the legislative text inoperative rather than literally altering or repealing it. Remedies are tailored to the specific requirements of the Constitution, and suspensions may be granted to provide time for legislative changes while recognizing the ongoing rights violations during the suspension period.

Judicial review on the constitutionality of legislation

Judicial review is a key feature of federal judicial power in the United States, giving federal courts the authority to declare that federal or state government actions violate the Constitution. The Constitution does not expressly grant federal courts the power to declare government actions unconstitutional, but the historical record from the Founding and early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and some favoured granting courts that power.

The first American decision to recognise the principle of judicial review was Bayard v. Singleton in 1787, decided by the Supreme Court of North Carolina's predecessor. The North Carolina court and other state courts treated state constitutions as statements of governing law to be interpreted and applied by judges. These courts reasoned that because their state constitution was the fundamental law of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with it.

In 1796, Hylton v. United States was the first case decided by the US Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794, which imposed a "carriage tax". The Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its power to strike down a law as unconstitutional. Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution.

During debates at the Constitutional Convention, the Founding Fathers made several references to the concept of judicial review. The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and accepted or rejected them, similar to today's presidential veto. Some delegates objected to the inclusion of federal judges on the council, arguing that the federal judiciary already had the opportunity to protect against legislative encroachment through its power to declare laws unconstitutional.

In Canada, only superior courts have the power to formally invalidate legislation. When faced with a constitutional challenge to a law, a court must determine to what extent it is unconstitutional and declare it to be so. There is no discretion to permit unconstitutional laws to remain operative, subject to case-by-case remedies. When a court finds a Charter violation, it may be appropriate to issue a prospective remedy only, depending on factors such as the government's reliance on the pre-existing legal rule and good faith in responding to the evolution of the law.

Remedial precision

The concept of "remedial precision" in the context of judicial review and the power of courts to invalidate laws is a crucial aspect of ensuring that court decisions are tailored to the specific requirements of the Constitution. This principle highlights that while courts are capable of interpreting the Constitution, they should refrain from making ad hoc choices from a range of options.

In the United States, the Supreme Court has exercised its power to invalidate portions of laws, such as the Religious Freedom Restoration Act and the Americans With Disabilities Act, on the grounds that specific aspects were not constitutionally "appropriate." This power of judicial review allows courts to strike down laws or provisions that are deemed unconstitutional, ensuring that the laws of the land conform to the principles enshrined in the Constitution.

However, the exercise of judicial review and the power to invalidate laws is not without controversy. Some critics argue that the language of the Constitution, including concepts like "freedom of expression," is open to interpretation and can be ambiguous. This ambiguity can lead to concerns about the legitimacy of courts, particularly when they appear to impose their own subjective interpretation of the Constitution. Nevertheless, proponents of judicial review counter that the very ambiguity of the Constitution's language necessitates interpretation by an authoritative institution, such as the judiciary.

In conclusion, the principle of remedial precision guides courts in their decisions to invalidate laws or provisions by ensuring that the remedies are tailored specifically to address the constitutional requirements. This precision helps maintain a delicate balance between upholding the Constitution and respecting the role of the legislature in enacting laws.

Prospective remedy

In common law jurisdictions, the law of remedies distinguishes between a legal remedy, such as monetary damages, and an equitable remedy, such as injunctive relief or specific performance. Declaratory relief is another type of remedy, where a court determines the rights of the parties without awarding damages or ordering equitable relief.

In the context of a court invalidating part of a law, the concept of a "prospective remedy" comes into play. A prospective remedy is a type of declaratory relief that is issued when a court finds a substantial change in the law rather than merely applying existing law. This means that the remedy will only take effect in the future, allowing time for adjustments to be made or for the legislature to take action.

For example, in the Canadian legal system, when a court finds a violation of the Charter, it may issue a prospective remedy if it is effecting a substantial change in the law. This involves considering factors such as the government's reliance on the previous legal rule, the government's good faith in adapting to legal evolution, fairness to the litigants, and respect for the role of the legislature. The court may also grant a suspension, determining its length, to give the legislature time to make necessary changes while recognizing the ongoing rights violations during the suspension.

In the United States, the Supreme Court has recently given itself the power to invalidate portions of laws that it deems not "proper" or not "appropriate." This new power has already been exercised to invalidate parts of several federal laws, including the Religious Freedom Restoration Act and the Americans with Disabilities Act. The Court's interpretation of what constitutes ''necessary and proper'' legislative action under Article I of the Constitution has broken new legal ground and attracted commentary about its potential future impact.

Suspended declaration of invalidity

When a court declares a law to be unconstitutional, it is 'struck down' and is no longer enforceable. This can sometimes create an "intolerable gap" in the law, as the law in question no longer exists. To prevent this, the courts may issue a suspended declaration of invalidity, which is a rare exception to the presumption of retroactivity. This means that the declaration is temporarily delayed to give the government time to create a constitutionally valid replacement law. The length of the suspension is decided by the court, and the government must demonstrate the appropriate duration. The suspension should be long enough to allow the legislature to diligently and effectively carry out its responsibilities.

A suspended declaration of invalidity is typically granted in circumstances where there is a range of policy options for the government to consider when drafting a replacement law. For example, the Supreme Court once suspended a declaration striking down existing anti-prostitution laws, as immediate invalidity would have left prostitution unregulated while Parliament worked to address the complex and sensitive issue. Courts also tend to suspend declarations when significant taxpayer funds are at stake.

While there is a strong interest in declarations with immediate effect to safeguard Charter rights and ensure constitutionally compliant legislation, a suspended declaration can be justified in rare circumstances to give effect to the purpose of the suspension. The government must demonstrate a compelling public interest in support of a suspension and identify the specific interest that would be endangered by an immediate declaration.

It is important to note that only superior courts have the power to formally invalidate legislation and issue suspended declarations of invalidity. Inferior tribunals can only treat an unconstitutional law as invalid for the purposes of their specific case and cannot issue formal declarations that apply beyond their own decision.

Frequently asked questions