Judicial Review Pt:2

We started with the topic of judicial review last week and we noted that one must first get leave (approval) of the court before making an application for judicial review. The application is generally looked at as an “application for an administrative order” and the court is empowered “to make such orders, issue such writs and give such directions as it thinks fit”. This week we would continue to look at other aspects of judicial review.{{more}}

The scope of judicial review

The forerunners of judicial review were the prerogative orders of certiorari, mandamus and prohibition. The orders were replaced by judicial review, and according to Professor Albert Fiadjoe “judicial review has provided a simpler avenue for the individual with a legitimate complaint against State action to have access to the courts. This has, in turn, led to a shift away from the technical and obscure rules which attended those prerogative orders to a refreshingly simple process, whereby the invocation of judicial review procedure implies the availability and combination of all remedies legally available to an applicant”. The applicant can obtain certiorari for quashing unlawful acts: mandamus compelling performance of a public duty and prohibition, prohibiting unlawful acts of a public authority. Judicial review is one of the tools in public law which gives the driving force to administrative and constitutional law.

The individual and the public administrator

Some people are of the opinion that judicial review is undemocratic as “it tilts the balance towards the individual against the State,” but one has to see this in the light of the tremendous powers that the executive has gained and the influence it has in relation to the social and economic life of the citizens of a country. As the state expands, it relies on a large number of authorities to carry out certain duties and it endows them with certain discretion, but this is not an unfettered discretion. We all know the powers that public administrators have over many of our regular activities. They are responsible for making regulations. They issue permits, licences and subsidies, and afford other privileges so that we become dependent on the executive for some of those things which are necessary in everyday life. According to Dr Roy Marshall, “administrators do not always observe the rules of procedural fairness and are inclined to subordinate the claims of justice for individual to what they conceive to be the demands of public policy” See p. 18 of Professor Albert Fiadjoe’s Commonwealth Caribbean Public Law, (2005). Judicial Review is, therefore, a useful tool for the citizens of this country and it has given a significant boost to the machinery of justice.

Grounds for judicial review

There are several well known grounds for judicial review. The public authority might have acted in an irrational or illegal or unconstitutional manner or might have been guilty of procedural impropriety. Unconstitutional action is one of the notable grounds which is derived out of the experiences of Caribbean Countries in the light of the fundamental rights enshrined in their constitutions. In many instances there are overlaps in these grounds.

Ultra vires

Of tremendous importance to judicial review is the doctrine of ultra vires. The Latin words have been used to describe an administrator acting beyond his or her authority or outside the scope of his or her authority. The doctrine of ultra vires is not restricted to judicial review but is also used in consideration of subsidiary legislation. Where a law does not comply with the constitution which is the supreme law of the country that legislation is said to be ultra vires the constitution and it is, therefore, void pro tanto to the extent of its inconsistency.

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