Characterising the Scope of Judicial Review: Constitutionalism Personified in the Netherlands, the United Kingdom and South Africa
01 / 2007 - 12 / 2009
This research project supports the assumption that constitutional review by the judiciary of legislation and common law (hereinafter judicial review) is the foremost personification of constitutionalism (the need to control state power). Yet, judicial review is no island or closed concept. Its scope begs research to ensure that its aim of controlling state power is continually met. This increasingly requires traversing "middle ground" between the notion of fundamental rights enforced by the judiciary and the limitation of such rights by a sovereign legislature - instead of the traditional depiction of these poles as mutually exclusive. In essence, research is needed regarding the different approaches to judicial review, and how these approaches impact on constitutionalism. This need will be addressed by comparing Dutch, British and South African thought and experience on the topic by comparing various factors that evidence "middle ground", ranging from the consequences, quality and modalities of judicial review, to the locus and character of the norms to be reviewed. (1) Dutch constitutionalism poses an interesting case-study. To date the judicial review of legislative acts is only allowed against international norms and not national norms, raising questions as to possible "middle ground". The 2002 proposal to amend the constitution wishes to allow the review of national norms as well, this created the need to reconsider the issue of judicial review. (2) British constitutionalism, since the adoption of the Human Rights Act in 1998, is increasingly embracing "middle ground". Although parliament is left with the final word, the courts are empowered to review classical rights. (3) South African constitutionalism, in contrast, evidences very little, if any, "middle ground" by opting for full judicial review. Presenting a worthwhile opportunity to compare these different approaches to judicial review in order to see if lessons can be drawn for sound constitutionalism as such.