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Report No. 189


Constitutional Courts and Judicial Review

We would now like to dwell briefly on the scope and extent of the power of judicial review which we have noticed is an inalienable part of the basic structure of our Constitution. The power of the constitutional Courts to go into the validity of the laws made by the Legislature or of the actions of the executive was broadly laid down by Justice Marshall CJ in the famous case in Marbury v. Madison, (1803) 5 U.S. 137. He reviewed the common law, Blackstone, the Federalist papers and the language of the American Constitution itself. After first deciding that Marbury, the petitioner, had a right to a writ of mandamus, to compel the Secretary of State, Madison to issue his Commission as a justice of the peace in the District of Columbia, he reached the next stage of the decision. The question was

"if he (Marbury) has a right, and that right has been violated, do the laws of his country afford him a remedy?" Marshall CJ answered as follows:

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his Court" He quoted Blackstone to the following effect:

"It is settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy and that every injury its proper redress. The government of the United Sates has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right"

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