Judicial Review

QUESTION:

With the aid of authorities, explain under what circumstances the courts may refuse to grant Judicial Review.

Judicial review is a court’s power to review the actions of other branches or levels of government especially the court’s power to invalidate the legislative and executive actions as being unconditional.1[1]The system of judicial review was inherited from Britain.2[2]The whole law of judicial review of administrative action has been developed by judges on case-to-case. Article 42 states that “Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”3[3]Judicial review is thus not only an integral part of the Constitution but is also a basic structure of the Constitution which cannot be abolished or whittled down even by an amendment of the Constitution. Therefore, it is a Fundamental Right in law. Thakker said, “It is not only the right and power but the duty of the Supreme Court to protect and safe guard the Fundament Right of the people.”4[4]In the case of L. Chandra v UOI,5[5]the court held that the power of judicial review of the High Court is a basic feature of the Constitution which cannot be abridged or ousted.

The nature and purpose of judicial review is not the review of the decision of the administrative authority but the decision making process. The right of seeking judicial review of the decision depends on the facts of each individual case. Illegality, irrationality and procedural impropriety are the grounds on which courts consider to grant judicial review in the public interest. Therefore courts will be slow to interfere with any administrative action if it does not fall in the above categories. In Lord Diplock's words illegality means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it." A 1[1] Bryan A. Garner: BLACK’S LAW DICTIONARY 7TH EDITION. Page 852

2[2] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 238

3[3] CONSTITUTION OF THE REPUBLIC OF UGANDA 1995

4[4] Thakker, C.K; ADMINSTRATIVE LAW ,1992.Eastern Book Company

5[5] (1997)3 SCC 261

decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it."6[6] This is also known as “Wednesbury unreasonableness.” Procedural impropriety is the process where the procedures prescribed by statute have not been followed or if the rules of natural justice have not been adhered to.

Remedies to judicial review are orders of certiorari, mandamus, prohibition or an injunction.7[7] Certiorari is a royal demand for information. Mandamus is a judicial remedy issued in the form of an order from the Supreme Court or High Court to any constitutional or statutory or a non-statutory agency. Prohibition is a writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a judicial officer from exercising a power. Injunction is an ordinary judicial process that operates in personal by which any person or authority is ordered to do or to refrain from doing a particular act which such a person or authority is obliged is obliged to do or to refrain from doing under any law.8[8] In the case of Justice R.O Okumu Wengi v A.G 9[9]brings up all remedies although the appellant lost because of the lapse of time to submit the documents.

The case of Ridge v Baldwin10[10] is a locus classicus case for judicial review in accordance to natural justice. A police constable was dismissed without being heard. Court held that the decision was void for failure of exercising natural justice. Although judicial review is a fundamental right as provided in Article 42,11[11]the right of seeking it depends on each case. Therefore, there are circumstances where judicial review may not be granted by courts. These can be seen in the discussion below.

Judicial review may not be granted when there are other alternative remedies which can be given to the person applying for it. In Ram Roop v Bishwa Nath,12[12]it was said that power may be exercised even in cases where no appeal or revision lies to the High Court. Therefore, where

6[6] Lord Diplock

7[7] CIVIL PROCEDURE(judicial review) RULES Sec.3,Order 2(1)

8[8] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 327,334,332 and 346 respectively.

9[9] MISCELLANEOUS APLLICATION No. 233 of 2003

10[10] (1964) AC Page 40

11[11] CONSTITUTION OF THE REPUBLIC OF UGANDA 1995

12[12] AIR (1958) ALL 456

any alternative remedy is available to the person, the court may not exercise this power. Section 37(1) and 38(1)13[13] provide for an order of mandamus or an injunction and the High Court having power to grant an injunction to restrain any person from doing any act as specified by the High Court. Therefore, if there are other alternative remedies to be granted to any person, then judicial review may not be granted by courts.

Judicial review as a fundament right to any person may not be granted in case of deployment of troops, foreign affairs and national security. In such cases, the courts regard themselves as ill equipped to investigate beyond an initial decision. The courts can investigate on the claim of the government as being bona fide.14[14] This means that the courts will not look in cases that are in the interest of national security hence not being able to exercise the fundamental right of judicial review. This also means that the courts will be compelled to exercise the power but in a particular manner. Courts will not therefore impose the option which it thinks it is the best. Thus courts will not be able to grant judicial review although it is a fundament right. In the case of Opolot v A.G15[15] it was held that the discretion should not be exercised where it is in the interest of the security of the state. In that case, Opolot would not be granted his fundamental right. Therefore, courts cannot judicial review in cases of national security.

In a case of locus Standi, courts may not grant judicial review. Locus standi is the right to bring an action or challenge.16[16] The issue is that no one will spend his money and time in challenging an action unless he has some interest in it. However, a mere interest would not entitle a person to a writ unless he or she can show that his or her interest is more than an ordinary member. In Maganbhai v Union of India,17[17]the petitioners sought to restrain the government from giving effect to a Kutch Tribunal award by handing over certain territory in Rann of Kutch to Pakistan. The Supreme Court refused to grant the writ because it found that no petitioner had any clear interest in the action of the government and neither did any one live there nor have any property there. In A.G

13[13] JUDICATURE ACT CHAPTER_13

14[14] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 249

15[15] (1969) E.A 631

16[16] OXFORD DICTIONARY OF LAW 5TH EDITION. Page 296

17[17] (1970)3 SCC 400

and Uganda Land Commission v James Mark Kamoga and James Kampala,18[18]the appellants filled an application in the High Court

Seeking review of a consent judgment entered by the Deputy Registrar in a suit instituted by the respondents against the appellants for recovery of land. The Court of Appeal held that the judge had no power to entertain an application for review of a consent judgment passed by the a registrar and that the respondents were not competent to apply for review as they were not aggrieved for purpose of the law under which the application was made and did not comply with conditions under the law. Therefore, when a party does not show his or her interest in the case of applying for judicial review, the courts my not under that circumstance grant judicial review although it is a fundamental right in the Constitution of Uganda under article 42.

Judicial review may not also be granted by courts under laches or unreasonably delay. This will apply to the person trying to seek writ. Although the Supreme and High Court are invested with the power for enforcement of the fundamental right thus being mandatory, the courts may not grant a remedy if there are laches in invoking the jurisdiction of the court. There is no fixed period for laches. Every case will be determined on its own merit. In Tilok Motichand v H.B Munshi,19[19]it was said that without reference to the limitation law the court must see whether there is any explanation for the delay in filing the petition. Thus, if any person files a petition for judicial review when the reasonable time has expired, the writ may not be granted by the courts. In Justice R.O Okumu Wengi v A.G, 20[20] the applicant filled an application to seek orders by way of judicial review; a declaration, Certiorari, prohibition, injunction, general damages and costs. The commission required the applicant to submit his comments on the allegations contained in the petition within seven days from the stated date (24th February, 2005) since he had been in possession of the petition since 9 th February, 2005. On 20th May the commission received a 40 page document which was dated the same day and contained comments by the applicant on the petition. The document was obviously late. The court dismissed the account by referring to the case of Joseph Borowski v A.G.21[21] The Supreme court of Canada dismissed Borowski’s appeal as the subject matter of his appeal was no longer in existence. Therefore due to laches 18[18] CIVIL APPEAL No. 74/02, dated 30th March

19[19] (1969) 1 SCC 110

20[20] Miscellaneous Application No.233 of 2006

21[21] [1989] 1 SCR 342

to any party applying for the writ of judicial review, the courts may refuse to grant it to the party.

Judicial review will be denied where the application for judicial review does not show an arguable base. This means that case will be misconceived. In the case of Justice R.O Okumu Wengi v A.G,22[22]the applicant applied for judicial review against a decision to have him removed from office. He later tendered his resignation to the president which was actually granted. Court held that courts of law do not decide cases where no live disputes between parties are existent. The case was thus dismissed on grounds that he had been voluntarily retired thus could not be removed from office. Justice’s case did not show an arguable base since he had written a resignation letter to the president and after he was seeking for judicial review because he was told to leave office by Judicial Service Commission. Therefore, courts may refuse to grant judicial review if the case reported seeking for judicial review does not show an arguable case.

Judicial review in some instances may not be granted in cases where by the statute court directly excludes courts from

applying judicial review. This may apply to certain particular decisions of an administrative tribunal or official. Therefore, the courts will not be bound to interfere with such decisions. When the administrative tribunals are the final in handling certain matters and the power was invested in them, then the courts shall not have power to review the decision decided by administrative tribunals. Hence, in such a situation the courts will refuse to grant judicial review since the final decision is supposed to be taken by the administrative tribunals. In the case of R v Medical Appeal Tribunal ex p.Gilmore,23[23]a tribunal’s decisions were protected by a finality clause. Therefore, they denied a workman injury benefits having misconceived the law. Lord Denning stated that finality clauses shall only apply where the whole procedure was made lawfully. In this case, the Medical Appeal Tribunal had a lawful finality clause hence the court cannot interfere with the decision made by the Medical Appeal Tribunal. Therefore, if the administrative tribunal has a finality clause the courts cannot come in to grant judicial review when a decision was given by the administrative tribunal.

In conclusion, judicial review is a fundamental right as provided in article 42 of the Constitution of Uganda 1995 thus everyone is entitled to it. If denied it leads violation of one’s right and can sue in court. However, there are some instances where judicial review may not be granted by 22[22] supra

23[23] (1957)1 QB 574

courts due to certain circumstances as discussed above. Therefore, although judicial review is a fundamental right there are some limitations thus it is not an absolute right.

BIBLIOGRAPHY

STATUTES

1.  CONSTITUTION OF THE REPUBLIC OF UGANDA 1995

2.  JUDICATURE ACT CHAPTER_13

TEXT BOOKS

1.  I.I Massey: ADMINISTRATIVE LAW 6TH EDITION.

2.  B.L. Jones and K.Thomas :GARNER’S ADMINISTRATIVE LAW 8TH EDITION

3.  Bryan A. Garner: BLACK’S LAW DICTIONARY 7TH EDITION.

4.  OXFORD DICTIONARY OF LAW 5TH EDITION

5.  Wade: ADMINISRTATIVE LAW

CASES

1.      E.A: EAST AFRICA

2.      QB: QUEEN’S BENCH

3.      ALLER: ALL ENGLAND REPORTS

4.      AC: APPEAL CASES

5.