JUDICIAL REVIEW
1.00.
Judicial Review is a public law remedy, by which an individual can challenge the legality of decisions, determinations, orders or even omissions of persons or bodies performing public functions. It is by judicial review that the court (High Court) can exercise its supervisory jurisdiction over inferior bodies, tribunals, public bodies and individuals performing public functions. Judicial review can also be described as a procedure whereby, a court examines the exercise of a delegated discretionary decision – making power, in order to ensure that the power has been properly exercised for its lawful purpose. The Court can intervene where the person or body, which has been given the power fails to act, when it is required to or when it makes a decision which it ought not to have made when acting properly within the terms of the mandate given to them.
The philosophical foundation of Judicial review has been aptly stated by Scott Gordon and James Madison, Gordon says:
“In all government there is a perpetual intestine struggle, open or secret, between authority and liberty, and neither of them can ever absolutely prevail in the contest. A great sacrifice of liberty must necessarily be made in every government, yet even authority which confines liberty can never, and perhaps ought never, in any constitution to, become quite entire and uncontrollable --- it must be owned that liberty is the perfection of civil society, but still authority must be acknowledged as essential to its very existence”[1]
James Madison said:
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men, the great difficulty is this: you must enable the government to control the governed and in the next place oblige it to control itself”[2]
We have no law in Zambia governing Judicial review, the law governing Judicial review in Zambia is ----- the law and practice for the time being observed is England High Court of Justice[3]. In England Judicial review is regulated by Order 53 of the Rules of the Supreme Court, otherwise known as the White Book. It was revised in 1997, to bring in comprehensive provisions to govern the entire process of Judicial review. The major reform brought in, by the new Order 53, was that, an applicant, apart from seeking the prerogative writs of certiorari, mandamus and prohibition, can in the same action now seek a declaration, an injunction or even damages. The Supreme Court has held, in the case of Dean Namulya Mung’omba and Two Others Vs Peter Machungwa and Two Others[4], that since Order 53 was very comprehensive on Judicial review. The Rules of the High Court did not apply. One of the parties, in that case had applied, under Order 14 and 18 of the High Court Rules, to join a party to the Judicial review proceedings.
The House of Lords, in two cases O. Reilly Vs Mackman [5] and Cocks Vs Thanet DC[6] held that since all the remedies one can claim for an infringement of his public law rights are now available under Order 53, it is against public policy and an abuse of court process for a litigant complaining against a public authority’s infringement of his public law rights not to proceed by way of Order 53. If they commence their action by ordinary writ of summons, His Lordships are supposed to redirect the matter to order 53 unless the other side consents to proceedings by ordinary action.
2.00. WHAT IS THE PUBLIC BODY FOR THE PURPOSES OF JUDICIAL REVIEW
There has been some misconception as to what a ‘public body’ is, in this country and England where the concept was imported from. Judicial review is only available to test decisions made by public bodies. If Judicial review is applied for, and the Court rules that the body whose decision is being challenged is a private body, then the remedy will lie in private law, not public law proceedings. In Ludwig Sondashi V Godfrey Miyanda (sued as National Secretary of the Movement for Multi-Party Democracy[7]), the appellant had been expelled from the respondent political party and he sought a Judicial review and a declaration that he had been wrongly expelled. The Trial Court found that the wrong procedure had been adopted, as respondent was a society dealing with private matters. The application was dismissed. On appeal to the Supreme Court, the question to be considered was whether the tribunal against, which the order was sought was one dealing with public law Respondent, being a political party and its concerns being those of a private association, its tribunals dealing with private, not public law, Judicial review could not lie against a political party. Appellant was entitled to come to Court, but adopted a wrong procedure, it was held, “the proper course would have been to have issued a writ claiming a declaration and injunction, not by way of application for Judicial review. The matter is one in which proceedings, instead of being refused, should continue as they had began by wit. Similarly in Nkumbula Vs Attorney General[8], the United National Independence Party, it was held, was club and therefore a subject of private law.
The reason why public law disputes have been subjected to the Order 53 procedure is that specific protections have been incorporated into this order, for benefit of public authorities. It is trite that government is a privileged litigant.
In R Vs City Panel on Takeovers and Mergers ex parte Datafin Limited [9]the takeover; panel had dismissed a complaint by a bidder of ‘acting in concert’ contrary to the rules on takeovers. The bidders applied for Judicial review. The court declined to grant the application on the basis that there were no grounds for judicial review, but nevertheless, rejected the claim made by the city panel, that the court had no jurisdiction to consider the application. The panel was subject to judicial review, despite its lack of statutory or prerogative source, of power, because it was a body exercising public functions analogous to those, which could be or could have been, in absence of the panel, exercised by a government department. Lloyd LJ, stated that, for the most part, the source of the power will be decisive. Accordingly, if a body is set up under statute or by delegated legislation, then the source of the power brings the body within the scope of judicial review. However, Lloyd LJ, also recognized that in some cases the matter would be unclear, where that situation existed, it was necessary to look beyond the source of power and consider the ‘nature of the power’ being exercised. In Lloyd LJ’s view, if a body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.
By contrast with the City panel on Takeover and Merger case , Supra in R Vs Disciplinary Committee of the Jockery Club ex parte Aga Khan [10]. The Aga Khan sought judicial review of the Jockery’s club decision, to disqualify his winning horse from a race for failing a dope test, and the court ruled that it had no jurisdiction. The relationship between racehorse owners and the club, and the powers of the club, derived from agreement between the parties and was a matter of private rather than public law. The same principle will be applied whenever a matter is regulated by contract between two private parties, the matter is one of private law and not public law. There is a fine distinction though, which has to be drawn here. The regulation of a private school, for example, has been held to be a matter of private law whereas the regulation of City Technical College, a non-fee paying publicly funded institution like, Evelyn Hone, is a matter of public law. However, where a pupil attends a private school under a publicly funded assisted places scheme, that school falls within jurisdiction of judicial review in relation to school’s decision, in particular, the decision to expel a pupil R Vs Governor of Haberdasher’s Asker’s Hatcham College trust ex parte T[11]. In determining whether or not the body whose decision is being challenged on an application for judicial review is a public body, as opposed to a private body. The Court will look at functions. The test is not whether or not the authority is government body as opposed to a private body. The court will look at the functions. Whether it is a body exercising powers analogous to those exercisable by government bodies.
3.00. PROTECTION OF PUBLIC BODIES IN JUDICIAL REVIEW
i) The need to obtain leave of court before proceeding with an action for Judicial Review.
Access to Judicial Review is not a matter of right. It is subject to the discretion of the court. As Sir H. Woolf observed, [12]‘if the leave stage was abolished, the court will be deprived of the power to exercise discretion.’ The leave stage empowers the court to dispose applications for judicial review summarily without taking evidence or hearing submissions of the body alleged to have acted unlawfully. It is meant to protect public bodies from being harassed by applicants making ill-founded challenges. Lord Scarman in the case of IRC Vs National Federation of Self Employed Small Business Limited[13] stated; Leave enables the court to prevent abuse of busy bodies, by cranks and other mischief makers. I do not see any other purpose served by the leave requirements.’ It is expected that at the leave stage, unmeritorious applications will be weeded out. The application, should contain a statement of the relief sought and the grounds upon which it is sought. The application should be accompanied by an affidavit verifying the facts relied on. From these documents, a Judge is expected to ascertain whether the application has any merit.
It is quite apparent from the decisions emanating from the High Court that not many Judges are aware of the full implications of the Order 53 procedure. There has been a tendency at the High Court to grant leave, as a matter of course without weighing the merits of a case. In one case, a politician seeking to buy a Government house under civil service home empowerment scheme was granted leave to challenge the decision, which barred him from doing so when clearly, the politician, being a none civil servant did not qualify.
It has been suggested that the leave stage, assists in case flow management, in that it ensures prudent management of limited judicial resources. This seems to have been the message from Lord Donaldson in the case of, R Vs Panel on Takeovers and Mergers ex parte Guinness PLC[14] when he said ‘Public interest dictates that Judicial Review should be exercised speedily; given the constraints of limited judicial resources, this necessarily involves limiting the number of cases in which leave to apply should be given.’
No leave should be granted unless the applicant can show that they have a sufficient interest in the matter. Care should be taken in such a matter, so as not to reject bona fide public interest litigation. The court, faced with an application for leave, should assess the litigant and decide whether, he has a bona fide complaint. The English Queen’s Bench Division was faced with such a situation, in the case of R Vs Secretary of State for Foreign Affaris ex parte World Development Movement[15] where the World Development Movement, a non governmental organization concerned with environment issues, challenged the grant of aid, by the Secretary of State to Malaysia, for the building of a dam whose environmental assessment study had shown that the dam’s life span would greatly be reduced by silting, thereby questioning the viability of the whole project. The question of standing and whether the organization had a sufficient interest in the matter became an issue. The court held that ‘having regard to the merits of the challenge, the importance of vindicating the ‘Rule of Law’, the importance of the issue raised, the likely absence of any other reasonable challenger, the nature of the breach of duty against which the relief was sought and the prominent role of the applicants, with national and international expertise and interest in promoting and protecting aid to underdeveloped nations, in giving advice, guidance and assistance with regard to aid, it was clear that the applicants had locus standi to make the application …’
Leave will not usually be granted where the applicant has not exhausted alternative remedies. As Lord Donaldson stated ‘… In R Vs Epping and Harlow General Commissioner ex parte Goldstraw[16] except in exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies are available and they have not been used.’ A judge faced with a situation, for example where a right of appeal is provided, has to weigh the circumstances and exercise his/her discretion whether or not to grant leave.
When an application for leave has been rejected, it can be renewed. This is usually the case where the refusal was based on insufficient information in the original application. In our jurisdiction however, care should be taken to avoid forum shopping. It is desirable that in such a case, the matter should be assigned to the same Judge.
(ii) THE SUFFICIENT INTEREST TEST
The Supreme Court Act 1981 section 31 (3) provides that the court must not grant leave for an application for judicial review ‘unless it considers that he applicant has sufficient interest (otherwise expressed as “standing “ or locus standing) in that matter, to which the application relates.’ The justification for such a requirement lies in the need to limit challenges to administrative decision making to genuine cases of grievance and to avoid unnecessary interference in the administrative process by those whose objectives are not authentic. The applicant may be an individual whose personal rights and interests have been affected by a decision, which affect the interests of society as a whole.