Courts and the Executive: Qualitative Elements of Judicial Review

Olli Mäenpää

【Abstract】The role of the courts performing the judicial review of administrative action varies in different legal systems due to context and traditions, juridical cultures, divergent perceptions of the proper functions of the courts, the value accorded to judicial protection and other related factors. In this article the role of the courts and judicial review are explored as guarantees of the rule of law in the exercise of executive powers. Special emphasis is given to the interrelationship between the judiciary and the executive in implementing the rights and obligations as defined by the legislative power. The presentation will also touch upon the division of state power between the judicial, executive and legislative powers.

The objectives of the presentation are threefold. First, an attempt is made to situate more precisely on the judicial map the role of courts in proceedings concerning administrative cases, i. e. cases where executive action is challenged in courts. Second, a mapping exercise also includes a description of the characteristic features of judicial procedure in administrative cases. Third, a qualitative assessment of the basic elements of judicial review is introduced with specific attention to the relationship between the courts and the administration.

1. Introduction

A distinct and fruitful tension can be identified in the relationship between the courts and the executive with respect to their different functions in exercising public power. The courts exercise judicial power and have a central role in offering legal protection to individuals affected by administrative decision-making. The basic function of the executive, on the other hand, is to exercise administrative power in order to make rights and obligations real within the framework defined by the legislature.

The tension is engendered by the fact that judicial review can be a constraint on the exercise of executive power because of its emphasis on adherence to law and legal principles. On the other hand, judicial review can also support administrative activity since the courts and the executive share the function of guaranteeing the rule of law both in individual cases and in the implementation of legislative intent.

This presentation will focus on the judicial review of administrative action and the role of courts in supervising legality in the exercise of executive power. The role of the courts and judicial review are explored as guarantees of the rule of law in the exercise of executive powers. Special emphasis is given to the interrelationship between the judiciary and the executive in implementing the rights and obligations as defined by the legislative power. In this respect the presentation will also touch upon the division of state power between the judicial, executive and legislative powers.

The objectives of the presentation are threefold. First, an attempt is made to situate more precisely on the judicial map the role of courts in proceedings concerning administrative cases, i. e. cases where executive action is challenged in courts. Second, a mapping exercise also includes a description of the characteristic features of judicial procedure in administrative cases. Third, a qualitative assessment of the basic elements of judicial review is introduced with specific attention to the relationship between the courts and the administration.

Two assumptions are inherent in the discussion of these three topics. It will be taken for granted that the interrelationship between the courts and the executive is significantly different from judicial proceedings concerning conventional civil or criminal cases. It will also be assumed that the basic reason for the judicial and procedural differences can be found in the specific qualities of the executive exercise of public authority. The executive possesses both the capacity and the capability to use power that can be unilateral and regulatory in nature. It is argued that these particular features should be taken seriously into consideration when the subject of judicial review is the executive－private relationship.

2. The judicial review of the executive action

The rule of law and the role of the courts

Judicial control of the executive is one of the cornerstones of the rule of law. Why does the control exercised by an independent judiciary play such an essential role in this respect? One of the key reasons can be found in the very definition of the rule of law. It is conventionally understood as denoting that law acts as a constraint on both individual and public action. Therefore, government and governors must also be subjected to law, and their actions must be independently reviewable.

Protection of individual basic, human and ordinary legal rights can be seen as the nucleus of the rule of law. In this respect, the right to challenge administrative decisions on legal grounds is a central warranty of individual rights. This can also be understood as one of the central reasons for imposing independent judicial control and review on government and executive action. The courts' chief role in this dimension is negative and restrictive. The courts act as a constraint on the exercise of administrative power and as a provider of judicial relief in cases of an administrative encroachment on private rights as well as an abuse of executive power.

But the law also imposes obligations to be complied with and sets down objectives to be achieved. It is the task of the executive to implement legislation and to make rights, obligations and goals real. This is the basis for a constructive and even creative role of the court. Furthermore, since the actualization of rights and obligations can be taken to be one of the basic functions of the executive within the framework created by the legislature, judicial review should also reinforce this task. Consequently, the court's chief role can be characterized as that of a positive guarantor that the legislative intent is carried through and that duties are observed.

The judicial constellation: the court and the parties

All judicial procedures may be illustrated in the same triangular constellation.The court is placed at the top of the triangle since it exercises judicial power in the individual case. The adversaries, whether parties in a civil dispute or in criminal proceedings, are placed on opposite sides of the lower corners of the triangle. The opposing parties are considered to occupy equal positions in the procedure and they must also be treated equally.

Equality of arms is the powerful metaphor that the European Court of Justice uses to characterize the parties' positions. It requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the opponent. That right means, in principle, the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court's decision.

The court and the executive: specific characteristics

The judicial constellation is identical when the court is reviewing executive action. The adversarial parties—the private subject and the executive-are in formally equal positions before the court. Correspondingly, equality of arms between the executive and the private party is also an essential procedural requirement. In reality, however, the constellation is not necessarily similar. It takes on special features as a consequence of the specific characteristics of the relationship between the administrative authority on one hand and the subject of the exercise of public powers on the other.

A variety of specific issues emerge from the characteristics of the judicial constellation in administrative cases. To start with, the focus of the court's review is in most cases on a power relation, a regulatory relationship between the public authority and the private party. As a consequence of its regulatory character, the administrative relationship is unilateral without consensual or contractual elements. Therefore the court is charged with the challenging duty of guaranteeing the fairness of the trial in the conduct of the procedure. More specifically, how can procedural fairness and equality of arms be guaranteed when one of the parties has unilateral executive powers and the other party is subject to the exercise of that power？

Since law governs the relationship between the executive and the private subject, legality and the rule of law are particularly central requirements in administrative decision-making. It is the court's task both to judge the legality of the decision and to provide judicial protection to the private party. Due to the varying effects of the administrative decision, the private party's access to the court is governed by specific rules of standing, which are more complex than in civil or criminal procedures.

The court needs to assess the action（or possibly in action）of the administrative agency or official in order to provide judicial protection. Both the scope and intensity of the court's review therefore become central issues. The powers of the court are also of significance: how far and to what degree of detail can or should the court interfere into the area of the executive by exercising its judicial powers in order to produce effective protection and redress.

In this article, these specific features of the judicial constellation will be characterized with particular reference to the accessibility and quality of judicial protection. The focus of the analysis will be on the relationship between the courts and the executive action in five dimensions：

（1）Access to justice—Individual access to court in administrative cases.

（2）The scope of judicial review—Judicial reviewability of executive action and deference accorded to administrative decision-making.

（3）Procedural fairness—Guarantees of a fair hearing in proceedings concerning administrative cases.

（4）The effectiveness of judicial remedies—Effective remedies for unilateral administrative action.

（5）The independence of the judiciary—Guarantees of the independence and impartiality of the court hearing administrative cases.

3. Access to a court in administrative cases

Three components of access

Access to justice is based on three main components: personal, substantive and procedural. In civil and criminal processes these components are fairly clear-cut and unproblematic, whereas in administrative cases all the components are central. They can significantly either limit or extend the jurisdiction of the courts and the scope of judicial review with respect to administrative action.

Personal access determines who can initiate the judicial procedure by challenging an administrative action in a court, while substantive access defines what kind of administrative actions can be reviewed by a court. Procedural access is a term that becomes applicable once the hurdles of personal and substantive access have been surpassed. It denotes the procedural rules and requirements governing the conduct and course of the procedure. All these components are more or less regulated in procedural legislation and usually, in a more nuanced manner, by case law.

The basis of all three components is regulated, albeit in a fairly general manner, in European law, thus forming a general European standard on access to judicial procedure. According to Article 6（1）of the European Convention of Human Rights（ECHR）on the Right to a fair trial：

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Similarly, the Charter of Fundamental Rights of the European Union lays down the basic access rules with respect to the application of EU law. Pursuant to Article 47 defining the Right to an effective remedy and to a fair trial：

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Personal access

Personal access（standing）is in the first place accorded to the direct subject of an administrative action. This includes persons whose rights or obligations are determined or whose rights and freedoms are violated by an administrative decision. The person to whom the administrative decision is directly addressed or who is directly affected by its outcome is entitled to challenge the administrative decision. For example, an applicant whose application for a license or a social benefit has been totally or partially rejected or a person on whom an obligation to pay taxes has been imposed has standing as a party and may thus challenge that decision.

Gradually, standing has been extended to those who are only indirectly but factually or substantially affected by a decision, e. g. to competitors in cases involving the application of business legislation and neighbors in environmental regulation cases. In this respect, special attention may be given to the harmful effects of decisions implementing environmental legislation. If such effects are of direct concern to the actual neighbors and those living in the neighborhood, they may appeal, for instance a siting permit for an industrial plant, which can be hazardous to health.

The reviewability of administrative action

Substantive access defines what kind of administrative action can be challenged before the court and to what extent they can be reviewed. In other words，substantive access is about the reviewability of administrative action. With respect to substantive access, the right to challenge executive action usually extends to administrative decisions determining or pertaining to rights or obligations. The right to challenge the legality of such decisions can be regarded as a fundamental element of the system of legal protection and judicial review.

More concretely, the access right would encompass decisions of administrative authorities particularly concerning administrative regulation（administrative licenses, land-use planning etc.）, taxation, public services and social welfare entitlements. In these areas of administrative action, an appeal may be directed against any final act or measure of an administrative authority. A problematic gap can still exist in the reviewability of executive action. If an authority remains passive, delays the matter, or completely fails to act without making a decision, an appeal is not necessarily available against such conduct or omission. If inaction cannot be challenged in a court, an administrative complaint can usually be lodged with an Ombudsman.

Procedural access

Procedural access is an important supplement to personal and substantive access. It determines how the procedure is conducted and what should be expected of the parties once they have gained formal access to the procedure. Central issues include the kind of procedural obligations the parties must comply with and the kind of procedural rights they are entitled to exercise.

Procedural access may be seriously hampered if the emphasis is solely on procedural formalities and strict compliance with them. The procedural requirements should not overshadow the actual purpose of the procedure, which after all is to provide judicial protection for the private party. Rigorous observation of due process should not pose an obstacle to attaining this goal. This is why the procedural rules should be designed so as to facilitate access to justice rather than to hinder it.

Since a considerable gap usually exists between the information and procedural skills of the private party and the administrative authority, the procedural rules should be simple, transparent, easily compliable with and foreseeable. In addition, the court should actively oversee that the individual is not left at a disadvantage because of his or her inferior procedural skills or informational abilities.

4. The scope of judicial review

An essential element defining the relationship between the court and the executive is the court's ability to perform inclusive and wide-ranging judicial scrutiny. Since judicial review interferes with the executive, at least whenever an administrative authority can be shown to have acted illegally, the range of that review is a measure of the judicial power vis-á-vis the executive power. Consequently, to the extent that courts can investigate the lawfulness of the administrative action, they can also affect the separation of powers between the judiciary and the executive. In this sense, the scope of judicial review also has constitutional dimensions.

Deference and the range of review

With respect to the range and depth of review, one of the central questions is how much deference the court can or should concede to the executive authority. Should the court be an active investigator or only a neutral or passive referee?Should the scope of review be limited only to the formal and procedural requirements of the exercise of administrative powers, or should the court have the authority to also scrutinize and judge the use of discretionary powers? In other terms, should the court's default approach be to give a“green light”to administrative decision-making unless the decision is manifestly unlawful or based on grave unreasonableness, or should the court apply a more stringent and in-depth degree of scrutiny, amounting to a“red light”approach?

In common-law jurisdictions judicial deference usually means that courts should primarily give effect to the legislative intent and its implementation by the executive. Therefore the courts should also be deferential to administrative decision-making and accord administrative decision-making a variable degree of deference. A deferential treatment of the executive power may also imply that the courts restrain from examining the discretion used by an administrative authority with the exception of clearly unreasonable interpretations. The U. S. Supreme Court's Chevron case law suggests that the court must“give effect to the unambiguously expressed intent of Congress”. If the statute is silent or ambiguous, the court must defer to any reasonable interpretation made by the administrative authority.

Continental European jurisdictions apply more varied standards of deference. For instance, in Finland, Sweden and France the use of the discretionary powers of the executive is subject to judicial review even though the standards of review may vary. For instance, the Finnish administrative courts have（and use）the power to investigate whether the authority has complied with general administrative principles（e. g. objectivity, equality, impartiality, proportionality, the protection of legitimate interests and the prohibition to abuse power）when exercising its discretionary powers. Even if the administrative authority has wide discretionary powers, the conformity of the use of those powers with these legal principles comes under the scope of the review of legality. The review of legality should also be extended to how the authorities comply with constitutional rights.

The limits of judicial power

Even though the standard and scope of judicial review may vary in different jurisdictions, it is normally focused only on whether the administration acted in a legal manner and within the powers defined by law and legal principles. Courts should show reticence in other issues that are not directly connected to the evaluation of legality. Policy issues and the actual exercise of executive power are especially considered to limit judicial review.

Administrative policies are considered to remain in the exclusive domain of the executive. Therefore the investigation of the advisability and expediency of an administrative decision falls outside the jurisdiction of the courts, and policy issues should be left outside of judicial review. However, the border line between administrative policy and discretion is difficult to draw, and the limits of judicial review in this dimension are open to interpretation.

Another limit of judicial power is based on constitutional principles, more precisely on the separation of powers doctrine. According to that doctrine, the actual adoption of an administrative decision belongs to the exclusive sphere of executive power. Because the courts are judicial organs, they lack the power to exercise executive power and to make original administrative decisions. Consequently, a court should not substitute itself for the administrative authority which has adopted the contested decision. This limitation can only be indicative since the courts are commonly considered to have the power to amend administrative decisions, at least under some criteria.

Judicial activism

In addition to the scope of judicial review, another testing stone of the character of the court—executive relationship is the degree of judicial activism. How dynamic should the court be? An active court is required to conduct the procedure in an active manner, to investigate on its own initiative, and the court is also empowered to take a detailed stand on the contents of the case. In this manner, the court is thought to be able to enhance the equilibrium between the inherently unbalanced relationship between the executive and the private party.

Particularly continental jurisdictions with separate administrative courts attribute an active role to the courts. The administrative courts are under a general obligation to actively conduct the procedure. The procedure is characterized by an investigation principle, according to which the court is responsible for comprehensively scrutinizing the contested decision. Although the burden of proof lies with the parties, the court may also obtain evidence and factual information on its own initiative, if this is deemed necessary to supplement the evidence supplied by the parties and to guarantee the fairness of the procedure.

An alternative procedural model is applied in common-law jurisdictions. It relies more clearly on the activity of the parties, who are expected to obtain and present the substantive evidence. Since the parties share the burden of proof, the court usually does not act on its own initiative. In fact, the court is expected to base its decision only onthe evidence put forward by the parties, the executive party and the private party.

5. Procedural fairness

Fair trial in administrative cases

Guarantees of procedural fairness must apply also in judicial proceedings concerning administrative cases. These guarantees include the right to be heard, the procedurally equal status of the parties and a public hearing in addition to the essential right of access to a court.

Equality of the parties

A key measure of fairness in judicial procedure is equality. Only equal treatment of the parties and their equal procedural rights and obligations are capable of guaranteeing a procedural balance that will put neither party at a disadvantage. In the judicial review of administrative action, the requirement of procedural equality can be approached from two angles, formal and material. Formal equality can be accomplished by treating both parties—both the executive and the private party—in exactly the same manner. On the other hand, a prerequisite of material equality mandates that the actual differences of the parties are accounted for without compromising the equilibrium of the procedure.

In administrative decision-making the administrative authority usually has a de facto superiority of power compared to the private party. The executive's superior position is based on several factors, usually including the right to exercise unilateral public power, sophisticated expertise in legal and administrative issues, and broader access to government-held data and information. Of significance is also the administrative authority's general proficiency in conducting the decision-making procedure and participating in a judicial procedure. It is rarely and perhaps only in the case of large companies or organizations that the private party is actually capable of matching the government in all these areas.

As a consequence of these and similar factors, a considerable gap usually lies between the information and procedural skills of the private party and the administrative authority. Therefore the procedural rules must be simple, transparent, easy to comply with and foreseeable. The court conducting the procedure must also actively oversee that the private party is not left at a disadvantage because of his or her inferior procedural skills or informational abilities. Similarly, the European Court of Human Rights has stressed that the requirement of equality of arms implies that“each party must be afforded a reasonable opportunity to present his case-including his evidence-under conditions that do not place him at a substantial disadvantage visà-vis his opponent”.

Against this backdrop, material equality as a supplement to formal equality is stressed in the Finnish law governing judicial proceedings in administrative courts. To start with, the administrative authority is not considered to have its own, individual rights that it should defend as an adversary of the private party. Since public authority belongs to the public domain and is exercised in the general interest, the agency or official does not possess the administrative authority. Procedurally, the agency is a party, but it is bound to the principles of legality, objectivity and impartiality as well as to the obligation to protect the general interest. Its position as a procedural party neither relieves the agency of its official duties nor does it authorize partial action.

That is why the administrative authority must act in a detached and impartial manner in the judicial procedure. For instance, the authority must provide all the evidence at its disposal even if it might be compromising for the authority's case. Further, the official statements submitted by the authority must be based on a neutral and objective evaluation.

The hearing and contradictory procedure

The gist of the judicial control of executive action is the hearing conducted by the court. Both the private party and the public authority have a right to be heard.Both parties（or all the parties, as the case may be）must be presented an opportunity to comment on the demands of the other parties. They are also entitled to give their opinions on all the factual evidence that may affect the resolution of the matter.

In order to exercise the right to be heard, the private party to an administrative judicial procedure enjoys considerable right of access to the case documents. The private appellant usually gains access also to classified documents if they may be or may have been of influence in the processing of the case.

According to the European Court of Human Rights, the adversarial nature of the procedure must be guaranteed so that“each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court's decision. ” Such a contradictory nature of the procedure is necessary since“the very purpose of adversarial procedure…is to prevent the Court from being influenced by arguments which the parties have been unable to discuss”.

Due process

Due process denotes the rights and duties of the parties involved, but it also imposes duties on the court. Since the rule of law applies also to courts, due process is a guarantee of both the procedural predictability and fairness of the proceedings. The minimum requirements for due process are clearly defined procedural rules, their regulation in law and their vigorous application in individual proceedings. All cases and parties must be treated equally and with equal fairness.

6. The effectiveness of judicial review

The judicial review of administrative action can only be successful if it is sufficiently effective to provide redress and to reinstate the status quo. Important factors in measuring effectiveness are the extensiveness and intensiveness of the judicial review. In other words, how wide-ranging are the judicial powers of the court to reconsider the administrative action, and can the judicial remedy enable the restoration of the status quo？

The effectiveness of the judicial powers can be measured in a number of dimensions. One can assess, for instance, the remedial, reformatory, constructive, compensatory, constitutional and interim powers of the court.

Remedial powers define the main foundations of any judicial remedy. In short, the court has the power to uphold or annul the challenged administrative decision. The court may also refer the case back to the administrative authority for reconsideration.

Reformatory powers refer to the court's power to substantially amend or otherwise modify the administrative decision subject to review. For instance, in cases concerning the application of environmental legislation or other regulatory decisions, the courts may have the power to amend a positive decision by supplementing it with more stringent conditions or limitations.

Constructive powers refer generally to the court's power to mandate new obligations, restrictions or positive objectives on the administrative authority. Such powers are situated squarely in the problematic boundary between the judiciary and the executive. As a principle, the court cannot assume executive functions, but on the other hand, it must provide effective judicial protection. How far does the objective of remedial effectiveness empower the court to extend its jurisdiction into the realm of the executive in a constructive manner? The established doctrine and case law tend to favor considerable reservation in this respect. However, even a more practical and extensive interpretation is possible if more emphasis is put on the corrective outcome of the review.

Compensatory powers refer to the court's power to hear restitution claims arising from a violation of rights or duties under administrative law and to award compensation for damages caused by the activity（or failure to act）of an administrative agency. In some jurisdictions（e. g. Germany and Finland）the compensatory powers of the administrative courts are limited since in most cases only the ordinary civil courts can award damages against the administration. In principle, the powers of administrative courts could quite as well comprise compensatory powers since there are no fundamental reasons to limit their remedial powers in this respect.

Constitutional powers define the boundary between the judiciary and the legislature. A critical yardstick is whether the courts are empowered to declare a legal provision null and void on the basis that it is contrary to the constitution. The ordinary courts are usually considered to lack the power to invalidate an act of parliament even if they find it to be in conflict with constitutional provisions. Similarly, the courts are generally not empowered to declare a legal provision null and void on the basis that it is contrary to the constitution. If the conflict between a legal norm and the constitution is clear, however, the courts may be under an obligation to refuse to apply the law and, instead, give precedence to the constitution in a concrete case.

With respect to delegated legislation and different kinds of administrative norms and instructions, the powers of the courts are normally not limited. The courts may thus misapply government decrees and similar administrative norms of an inferior normative rank to the extent that they conflict with the constitution or an act of Parliament.

Interim powers refer to the court's power to issue injunctions to the administrative agencies and to stay the execution of an administrative decision. Since the duration of a judicial procedure can vary and proceedings can be delayed, interim powers may offer significant, albeit provisional protection.

7. The independence of the judiciary

A fair trial is possible only in independent courts of law. With specific respect to the courts reviewing the legality of administrative cases, it is of paramount importance that the administration cannot wield an influence on how the courts handle the cases. Courts are not an extension of the executive, nor can they receive any instructions from administrative agencies or officials. Integrity, authority and legitimacy are of the highest significance in the judicial decisionmaking when reviewing the legality of the executive arm of the state.

As a general requirement, the division of state powers mandates that the courts act independently of the executive, the legislative power and other courts. The courts must also be able to conduct the procedure without interference from the media, political organizations and other external actors. The only legitimate and lawful method of influencing the decision-making of the court is by way of procedural action by the parties. Therefore it is both legitimate and essential that the authority whose decision is challenged can produce evidence and specify the grounds that support its decision.

8. Concluding observations

A well-functioning judicial review and effective remedies are necessary guarantees of legal protection for the subject of executive power. They are also needed to ensure compliance with law in administrative action. Even in an ideal situation in which laws are correctly observed and implemented by the administration in a proactive and practical manner, the possibility of judicial review would still be needed for preventive reasons.

The role of the courts performing the judicial review of administrative action varies in different legal systems due to context and traditions, juridical cultures, divergent perceptions of the proper functions of the courts, the value accorded to judicial protection and other related factors. For these reasons, it is difficult to generalize and to define a generic standard of the judicial constellation with respect to the relationship between the courts and the executive.

What probably can be accomplished, however, is to analyze and describe the central dimensions and qualitative elements of such a standard. It can be argued that foremost on the list of indispensable elements are adequate access to a court, guarantees of procedural fairness, a sufficiently broad scope of judicial review, effective remedies and the independence of the courts.

The chief purpose of this article has been to chart some of the principal factors defining the role of both the court and the parties in this relationship. The focus has been on traditional nation states, their constitutional systems and administrative law regimes. The emergence and growth of trans-national and global administration will be likely to complicate the role, scope and procedure of judicial review, but these issues will need to be addressed separately and in more detail.