You are on page 1of 3

QUESTION:

Constitutional grounds are used to review rights-based violations (infringement of constitutional


or fundamental rights) while common law grounds are to review non rights-based violation
(infringement of normal rights) of individuals against the unlawful actions or decisions of the
authorities. Analyze the above statement.

Judicial review exists to ensure that powers are exercised for the purpose for which they were
conferred and in the manner in which they were intended to be exercised. Judicial review
assures that fundamental rights of individuals protected by the Federal Constitution are not
infringe by the governments actions. A discretionary power is a power exercisable at the
discretion of the concerned authority. Officials in whom discretionary power is vested have a
range of options at their disposal and they exercise a measure of personal judgment in making
choices. Based on the doctrine of separation of powers, the judiciary has a role to ensure that
the administrative bodies act within their allocated authority or jurisdiction which done by way of
judicial review. The courts have been conferred powers by the legislation to control and review
the acts and decisions of administrative bodies. The main role of courts is to keep the
administrative bodies to act within the scope of the allocated authority given to them by statutes.
When administrative action or decision exceeds the limits given, it is known as ultra vires or
beyond the statutory power. Thus, when a person had been infringed of his or her rights or feels
aggrieved by any act or omission of the administrative body they may file an action in court to
redress his grievance or vindication of his rights.

In conclusion, discretionary powers of administrative bodies can be reviewed by courts on two


grounds, basically constitutional review and common law ground. Constitutional review is used
to review infringement of constitutional or fundamental rights stated in Federal Constitution.
While common law ground is to review infringement of normal right of individual against unlawful
action or decision made by administrative bodies. Constitutional review focused on Article 4 and
Article 8 of Federal Constitution and test of fairness while common law ground is wider.
Common law ground concentrates on narrow and broad ultra vires. Broad ultra vires is divided
into abuse power of authorities and failure of the authorities to exercise the discretionary power
given to them. Generally, some of the types of ultra vires are quite similar with each other
especially ultra vires under common law ground. Thus, it is for the court to decide which type of
ultra vires the unlawful acts or decisions fall under.