Judicial Review

You have been hearing the words Judicial Review very often for the past week. This week we would look at judicial review for your own edification.

What is judicial review?

Professor Albert Fiadjoe describes the power of judicial review as “the jurisdiction of the superior courts to review laws, decision acts or omission of public authorities in order to ensure that they act within their given power.{{more}} In public law, there is seen the need to provide protection to the citizen from the enormous powers of the State. Professor Fiadjoe in his book, “Commonwealth Caribbean Public Law (2005), claims that it is the power of the Courts “to keep public authorities within proper bounds and legality. He further states that “to the extent that it is employed as a fetter on state power it is a most important constitutional tool, for example, a public authority must direct itself of the law properly and it must not use its powers for improper purpose.

Appeal versus judicial review

We have to make a distinction between an appeal and judicial review. Although there is some overlap in both processes, there is a clear distinction in that judicial review calls into focus the supervisory jurisdiction of the court. Whereas appeal is a “rehearing of a matter that was heard in the lower court”, judicial review challenges the act or omission of a public authority for legality. In this way judicial review can place workable limits on State power.

Persons or bodies who may apply

The power of judicial review cannot be initiated by the courts on its own, but must be so invoked by a person who is aggrieved or is prejudiced by the decision or an omission of a public authority. It therefore requires a person to have the requisite standing (locus standi) that is, sufficient interest or the right to bring an action or to be heard by the court. Civil Procedure Rules (2000) Part 56 .2 sets out six basis for standing. A person who has been adversely affected by the decision which is the subject of the application, a body or group acting at the request of a person, a body or group that represents the views of its members, a body or a group showing public interest, a statutory body where the subject matter falls within the statutory limit or any other person or body who has a right to be heard under the terms of any relevant enactment or constitution.

Leave for judicial review

Before an application could be made for judicial review the applicant must first obtain leave from the Court to do so. Part 56.3 of CPR (2000) permits the application to be made without giving notice to the other side. Besides the usual formalities, (names, addresses, description of the parties) the application must include the relief sought and the grounds on which the relief is sought. Further, the applicant must indicate (1) whether an alternative form of relief is available and why judicial review is more appropriate or why the other form of relief is not pursued; (2) whether there is any time limit for making the application (If time limit has been exceeded reasons must be given for any delay). (3) whether the person is personally affected by the decision of the authority or the extent of the public or other interest.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com