ABSTRACT
Judicial intervention to control the excesses of governmental power is not a new phenomenon. In Rookes v Withers (1598), Coke CJ asserted that the exercise of discretionary power was subject to control:
In Baggs Case (1615), the unlawful expulsion of a freeman from his borough by local officials was declared unlawful. Before the Revolution of 1688 the courts stepped in, on occasions, to control even the prerogative powers of the monarch. In Prohibitions del Roy (1607), personal adjudication by the King was outlawed in both civil and criminal actions; it was also asserted that the King did not have a power of arrest. The claim that ‘the judges are but the delegates of the King, and that the King may take what causes he shall please to determine ... this was clear in divinity, that such authority belongs to the King by the word of God in the Scripture’ was rejected. The court retorted:
In Dr Bonham’s Case (1610), Coke CJ even went so far as to assert that an Act of Parliament might be subject to judicial scrutiny:
This suggestion that an Act of Parliament could be challenged by reference to some higher form of law, however, remained undeveloped. Instead, the courts in the United Kingdom developed the principle of Parliamentary Supremacy. Judicial review itself, in theory, endorses this principle in its assertion that, in reviewing the legality of executive action, the courts discern and uphold Parliamentary intentions through statutory interpretation.
