Methods of judicial review

1. Methods of judicial review

2. BALANCING • A constitutional method in which the court weighs the right of an individual to certain rights guaranteed by the Constitution with the rights of a State to protect its citizens from the invasion of their rights. • Requires an individual to identify, assess and compare competing interests. • The Court must identify the interests implicated by both parties, assign values to the identified interests and finally decide in favour of the party whose identified interests command the higher value.

3. PROPORTIONALITY • the measure must be appropriate for attaining the objective • it must be necessary, in the sense that no other measure is available which is less restrictive of freedom • the measure must not be disproportionate to its aim (stricto sensu proportionality)

4. Categorical approach • A category is governed not by a flexible standard like proportionality or an ad hoc balancing test but by • a rather inflexible rule that is a test governed by the presence or absence of some specified facts. • Applying such a rule the judge considers whether those specified facts are present rather than whether on balance the regulation is justified.

5. Content based - content neutral • When a regulation of speech is content - based the judge must apply the strict scrutiny test. • When a regulation of speech is content -neutral the judge must apply ordinary scrutiny. • A LAW MAY BE HELD TO BE CONTENT-NEUTRAL IF IT CAN BE JUSTIFIED WITHOUT REFERENCE TO THE CONTENT OF THE REGULATED SPEECH.

6. Levels of scrutiny • Strict scrutiny: to pass the test a challenged governmental action must be “closely” related to a “compelling” governmental interest. (Close relationship: least restrictive means of regulation) • Intermediate scrutiny: the challenged regulation must be “substantially” related to a “legitimate” interest. • Ordinary scrutiny: the challenged regulation must be “reasonably” related to a “legitimate” interest.

7. Stone’s balancing v. rules. • The principal argument in favour of ad hoc balancing is that it gives the judge applying the test much flexibility. • When the judge balances the competing interests served by the impugned law and by protection of speech or communication, the judge can easily respond to the particular circumstances of the case. • If , as under a more defined rule, protection depends on whether the speech in question has certain qualities, it is more difficult for a judge to be so flexible.

8. Unforeseen facts • The constraint that a rule is said to impose can create problems when a court is presented with unforeseen facts, such as new technological and social developments. • A judge using an ad hocbalancing analysis would have little trouble responding to such facts.

9. Flexibility • balancing allows courts to respond to the special aspects of each case as they arise • This gives them the capacity to accommodate unforeseen circumstances, to respond to technological or social change and to attempt to exploit ‘loopholes’ to escape the operation of a rule.

10. In favor of rulesself-restraint • need judicial decision-making based on reasons generalisable beyond the particular case. • conception of the appropriate judicial role within a society committed to the rule of law. • even when a law is judge-made, the role of the judge is appropriately constrained by rules that reduce judicial discretion at the point of application.

11. Security of law • Secondly, there is the argument that flexibility produces errors. • The uncertainty that follows leaves judges in subsequent cases without much guidance and thus increases the probability of anomalous results • the use of such a particularised form of decision-making is especially inappropriate for high courts • Special need for defined rules and certainty of outcome in the freedom of speech context