Beruflich Dokumente
Kultur Dokumente
Judicial Review
Introduction
What is judicial review? The power of judicial review may be defined as the
power of the jurisdiction of the superior courts to review laws, decisions, acts
and omissions of public authorities in order ot ensure that they act within
their given powers. Broadly speaking, it is the power of the courts to keep
public authorities within proper bounds and legality. To the extent that it is
employed as a fetter on the state power, it is a most important constitutional
tool. For example a public authority must direct itself properly on the law and
must not use its powers for improper purposes. It must be noted that the
court has no power suo motu to apply judicial review. Its jurisdiction is always
invoked at the at the instance of a person who is prejudiced or aggrieved by
an act or omission of a public authority. Once an applicant satisfies the
requirement of locus standi, an applicant may bring proceeding for judicial
review even if there is no decision on which a prerogative order can legally
rest.
Additionally, the court has power, in judicial review application, to
declare as unconstitutional, law or governmental action which is inconsistent
with the constitution.
As stated by Tracy Robinson, judicial review also establishes a clear
nexus with the supremacy of the constitution, in addition to placing a grave
duty and responsibility on the judiciary.
It is important to contrast the power of judicial review in the Caribbean with
what prevails in the UK, where, because of the doctrine of parliamentary
supremacy, the courts do not have the power to question the legality and
of
the
[Caribbean]
constitutions
has
attempted
to
Carnegie, 1971.
right and freedoms. Any infringement of these rights and freedoms by both
the executive and the legislature could be restrained by a constitutional
motion.
Aggrieved persons could apply to the High Court for redress for any
contravention or likely contravention of these rights. The High Court was left
with a wide amplitude for appropriate redress.
The beauty of the constitutional motion was that it could be:
(a) combine with judicial review
(b)used to enforce substantive as well as procedural rights; and
(c) Invoked in the participation of a threaten breach.
DISTINCTION BETWEEN REVIEW AND APPEAL
For better appreciation of the doctrine of judicial review, one must note the
distinction between review and appeal.
Even at this early stage, it is important to appreciate the distinction between
review and appeal, for judicial review proceedings the courts claim to
exercise, supervisory, not appellate jurisdiction. These are all somewhat
artificial and very confusing because, as we shall soon see, there is certainly
some overlap between the two processes.
An appeal involves the transfer of a case from a lower court to a higher
one for the purpose of re-hearing. The right of appeal is usually conferred by
statute, which normally sets out the circumstances under which it may be
invoked. Like judicial review, appeals also provide an avenue for the
protection of citizens rights, but unlike judicial review, their origins are not
founded on the common law.
We may note some features of appeal. First, right of appeal is usually
statutory. Second, where a statute does not restrict the grounds of appeal an
[1985] AC 374
Lord Diplock has in recent times sought to rationalize the grounds for judicial
review into three categories: procedural impropriety, irrationality and
illegality. Lord Diplock may be forgiven for not adding the fourth and most
important
category
as
are concerned:
unconstitutionality.
The ultra vires
In light of the fundamental rights provision in Caribbean Constitutions, it is n
now permissible to frame a challenge to administrative action in terms of
both the common law and the constitution. Of course, the possibility that
administrative actions may also violate the fundamental rights provisions
means that the court of law must be extremely careful in balancing
competing interest of the public in coming to a conclusion on a matter.
The principal weapon in judicial armoury for the control of State power has
traditionally been the doctrine of ultra vires. Professor Wade calls ultra vires
the central principle of administrative law. Ultra vires is a Latin phrase
meaning, simply, acting beyond ones power or authority. The general idea
behind the term is that a decision or action of the functionary is said to be
ultra vires when that functionary acts outside the ambit or scope of its
authority. The doctrine of ultra vires of ultra vires is not limited to public law.
So it is important that one appreciates the several contexts in which the term
is used. One area of very wide use of the doctrine of ultra vires is in relation
to subsidiary legislation. Here the doctrine is used essentially as a means of
controlling abuse of power by the executive arm of government. 6
While it is true to say that the ultra vires principle has waned in importance
as the cornerstone of judicial review, it is still important to remember that
focusing on the ultra vires doctrine helps at least to identify the utility of that
principle in the context of litigation. Among its important attributes is the
reminder that judicial review is concerned with defining the scope of State
6
power and that most of its presumptions are to be view in the context of
statutory interpretation. It also provides a broad, general principle for judicial
review. Of greater importance today, is the fact that the courts have based
the development of modern public law principally on the exercise of
discretion and the maintenance of the principles of good administration. In
ideological terms, the courts and government are seeing themselves in a
new and special relationship pursuing this common aim.7
Ultra vires then, is a conceptual tool used as a conclusion for every type of
successful challenge of unlawful decision or action of any functionary
purporting to exercise statutory or constitutionally conferred authority.
Substantive Ultra vires
Substantive ultra vires occurs when a public authority does something which
is not authorized by statute. Put simply, a public authority that has been
granted powers, whether by the constitution, statute or some other
instrument, must not exceed the power so granted. It will be taken to have
exceeded it powers if it has done or decided to do an act that it does not
have the legal capacity to do.
It
is
important
to
appreciate
that
statutes
are
not
wholly
10
11
12
means that they may not exercise powers which have been otherwise
conferred on someone else specifically.
The principle (delegatus non potest delegare) means that power
conferred on A must be exercise by A specifically. It cannot be
delegated to someone else.
Traditionally, a distinction has been drawn between judicial, legislative
and administrative powers. It was said then that judicial and legislative
powers could not be delegated14 but that, depending upon the context,
administrative powers could be delegated. The distinction as to what
administrative power could be delegated seems to revolve around the
question whether the power involved the exercise of an important
discretion. While a functionary could delegate the power to undertake
work preparatory to the decision making, the final decision had to be
made by the functionary so charged with the power.15
Obviously, the traditional approach provides a unhelpful way to
resolve
the
question
of
improper
delegation,
and
several
15
announced
by
or
on
behalf
of
government
or
public
such notice. There was some dispute as to whether Cooper has sent
such notice or not to the board. But the Board demolished his house
which has been substantially built. In a strong affirmation of basic
fairness, the court asserted a common law right to a hearing where a
statute is silent on the point, especially in the context of loss of
property. As Byles J put it:
a long course of decision establish that, although
there are no positive words in a statute requiring that the
party shall be heard, yet the justice of the common law will
supply the omission of the legislature.
A modern formulation of the same theme is to be found in Wiseman v
Borneman, where Lord Guest said:
It is reasonably clear on authorities that where a statutory
tribunal has been set up to decide final questions affecting parties
rights and duties, if the statute is silent upon the question, the courts
will imply into the statutory provision a rule that the principles of
natural justice should be applied.
For our purpose it is sufficient to appreciate that natural justice
represents nothing more than the imposition of certain procedural
safeguards on a body or person whose decisions may affect the rights,
interests and legitimate expectation of others. The courts have applied
those safeguards as a tool in the supervision of public bodies.
However, natural has been extended to clubs,16 associations, trade
unions17 and professional associations. In Baize v AG, per Phillips JA,
identified the twin pillars on which natural justice is said to rest,
namely: the right to a fair hearing and freedom from bias in an
16
17
adjudicator.
string to the bow at common law, and that is the concept of fairness.
While some judges still hang on to the old classifications, there is a
general acceptance of the notion of fairness as an additional limb to
the principles of natural justice. This shift is said to be a shift in focus
from the rules of natural justice to the development by the courts of
the duty to act fairly.18 It is possible to argue, that the courts
philosophy of justice has at its foundation the desire to be fair at all
times and that the principles of natural justice mere reflect that desire.
Indeed, the two principles of fair hearing and absence of bias in an
adjudicator are targeted to the decision maker precisely because those
principles are very significant aspects of fairness in the decision
making process.
18
20
21
[11985] AC 374
Financial interest
Non-pecuniary bias.
the
desire
to
protect
the
individuals
confidence
in
23
Thomas R, 2000, p 41
for
he
would
have
legitimate
or on behalf of, the public authority which has the duty of making the
decision, if the authority has through its officers, acted in a way that
would make it unfair or inconsistent with good administration for him
to be denied an inquiry.
Though it would appear, that the doctrine of legitimate
expectation is based on in natural justice and reasonableness, it would
however, be more accurate to say that the doctrine seems to rest on a
broader notion of fairness.
(c) Abuse of Discretion
Discretion
conferred
upon
public
authority
must
be
exercised
24
Padfield v Minister of Agriculture [1968] AC 997 is regarded as the locus classicus on this
point.
the license with the condition that there was to be no noise nor
dancing. In an attempt by the hotelier to upset the condition, the court
held that they felt that the decision was not so unreasonable that no
reasonable authority could have come up with the decision.
National
Federation
of
Self-Employed
and
Small
Businesses (IRC). Thus the test for locus standi in Singapore is one based on
sufficient interest. This indirectly means that Singapore has not adopted as
conservative a view as the Malaysian position in Government of Malaysia v
Lim Kit Siang.
However, it is unclear whether the use of the term sufficient interest in
Colin is a liberal one akin to the English Order 53, based on which publicspirited citizens have managed to obtain judicial reviews despite not having
direct interests. Chan Sek Keong CJ has remarked that In Singapore,
although the courts appear to have accepted the same sufficient interest
test to determine whether leave for judicial review should be granted, that is
not, in my view, also to say that our courts will apply the test with the same
rigour as the UK courts.
Thus, the locus standi position in Singapore appears to require at least some
form of personal interest being affected before allowing access to judicial
review of administrative actions. In other words, a civic-minded citizen does
not have standing for a judicial review regarding an action purely in the
publics interests. Public interest litigation is thus curbed.
Since the Singapore Order 53 does not define locus standi, there is
considerable flexibility for local courts to evolve these rules. Singapore
judges can choose to exercise creativity in this matter. The following sections
analyze why and how local courts should develop this area of the law
towards a much more liberalized state.
Local courts should relax the current locus standi position and allow
individuals access to judicial review for acts concerning interests wider than
that of their own (i.e. public interests) for the following reasons:
1. GOOD GOVERNANCE AND PUBLIC ADMINISTRATION
This can be achieved through
Public scrutiny
Civic-minded citizens being able to commence judicial reviews on behalf of
the public will provide a socially motivated check on administrative power,
helping to highlight administrative abuses and excesses. Knowing that their
actions might be subject to close scrutiny, public administrative bodies will
be mindful of making good decisions. In a time when much of society is
influenced by governmental departments and public authorities, such a
practice will help to improve the system of accountability and transparency
in government decision-making. This leads to good public administration,
which in turn leads to good governance. Public interest litigation has been
proven to have promoted good governance in public administration.
Publicity
Even if the judicial reviews still fail in merit, the widespread publicity usually
garnered from a citizen challenging an administrative action will still raise
national awareness regarding legality of such actions and put other citizens
on guard of possible abuses. This also improves quality of public
administration.
Judicial pronouncements
Judicial pronouncements will later represent the dos and donts in public
administration and mistakes previously made will not be repeated. Public
administration
can
be
improved
with
reference
to
such
judicial
pronouncements.
PHILOSOPHICAL GROUND. CITIZENS HAVE RIGHTS. ROLE OF INDIVIDUALS
It is submitted that it is a citizens right to help cure public misdoings. If not a
legal right, a citizen certainly has a moral right to it.
Powerful executive reigns in unwritten and written Constitutions. Cannot be
subservient to executive.
With
strong
government
based
on
the
Westminster
system
of
brought
to
the
courts
without
being
hindered
by
too
many
In fact, relaxing the locus standi position may even serve to improve the
quality and efficiency of public administration.
Floodgates: Lastly, it must not be forgotten that even if the public interest
litigant succeeds to meet the threshold locus standi, it does not mean that
the litigant will later succeed on the merits of the case. And even if he
succeeds on the merits, it also does not mean that he is able to obtain the
remedies sought.
LIMITS
CURBING
THE
EFFECTIVENESS
OF
SUCH
Generally, the Malaysian and Singaporean public are reluctant to take the
government and public bodies to courts. There is always this perennial fear
that the government department will punish them. They prefer to shy away
from a challenge if dissatisfied with a government decision unless provoked
by suffering grave personal injustice. To them, acceptable inconvenience is
preferable to avoid the greater trouble if the government is taken to courts.
PUBLIC LITIGATION NOT A LUCRATIVE AREA OF LEGAL PRACTICE
public interest litigation is also not a lucrative area of legal practice, and
even if there is a very public-spirited citizen who feels very strongly for a
particular cause, unless he himself is a lawyer, may not be able to engage a
lawyer or a good a lawyer to share his cause for a penny.
Resistance from the government
Naturally, the executive would probably not respond readily to relaxing the
rule on locus standi for fear that the sovereignty of their powers would be
infringed upon, and who pursuant to the doctrine of separation of powers,
believes it should govern with the least interference from the other branches
of government.
However, based on those above discussed reasons, leaders of the must not
be intolerant of dissent including any complaint against maladministration.
They must not be chary of introducing good governance to every level of
governmental administration because if it is able to permeate the entire
public administration, the problems associated with administrative corruption
and abuse will slowly fade away by themselves and die a natural death. A
good public administration brings greater respect and support for the
executive. It will also receive international acclaim for its fidelity to the rule
of law and sincerity in coming to grips with administrative injustices which
often grip poor and developing countries.
the region. As discussed, there are strong reasons for such liberalization, and
any potential arguments or limitations against it are either unfounded or
inconsequential. The time has come for local courts to exercise their
creativity regarding the locus standi position. After all, truth fears no trial.
NB. This lecture is not intended to be exhaustive on Judicial Review, but merely an
outline the applicable areas for assessment.