JUDICIAL REVIEW
Definition: Judicial review may be defined as the review by the High Court of the decisions, acts and
omissions of public bodies or their officers.
The aim of judicial review is to keep the actions of public bodies and officials within the confines of the law
from which they derive their power. The Court which exercises the power of judicial review is the Supreme
Court which is a superior Court of record. The Supreme Court sits as a court of original jurisdiction; a court of
appeal and a court of review.
The Supreme Court sitting as a Court of Appeal
When the Supreme Court sits to hear an appeal against the decision or sentence of a lower court it is exercising
both its inherent jurisdiction at common law and its statutory jurisdiction under the High Court Act.
The Supreme Court Sitting as a Court of Review
When the Supreme Court sits as a Court of Review it is exercising its inherent jurisdiction which is vested in it
at common law and which enables it to function in its supervisory capacity to review the actions of statutory or
public bodies or their officials.
When the Court is exercising this supervisory function it is also exercising its original jurisdiction to hear
applications for a review of the actions or omissions of a public (statutory) body, tribunal or its functionaries
(officials).
What is a Public Body?
- A public body is a body vested with the responsibility of performing a public function.
Below are examples of Public Bodies that are subject to judicial review by the Supreme Court.
1. The Ministry of Education
2. The Fire Service
3. The Ministry of Health
4. The Mayor and City Council
Note: These may also be called statutory bodies.
What is a Statutory Body?
A Statutory body is a body created by statute or by Parliamentary enactment and which derives its power from
that statute. A statutory body may also be called a public body.
Below are examples of Public Officials who are subject to judicial review by the Supreme Court.
Carson Hamilton – Cape Law Page 1
1. The Governor
2. The Minister of Health
3. The Commissioner of Police
4. The Commissioner of Inland Revenue
5. High Court judges
6. Magistrates
Note: Judges and Magistrates are also known as public
tribunals as well as public functionaries.
The Inherent Jurisdiction of the High Court
1. A power vested in the High Court at common law
2. A power not limited to powers vested under statute
3. A power which vests the Court with the authority to apply its discretion outside of the
requirements of statute.
When does a Public Law Issue arise?
A Public Law issue may arise when a public or statutory body, tribunal or functionary acts or fails to perform a
public duty which it owes to the individual.
Locus Standi: Who can sue and who to sue.
Locus standi may be defined as having the interest under the law which entitles one to bring an action or
challenge a decision. For the purpose of this lesson locus standi will be examined only with respect to public
law matters.
If a person wishes to bring a matter against a public body into court he must show that:
1. He has locus standi
2. He has a good prima facie case
3. The body against whom the claim is being brought is a public body who has done some thing which
it ought not to do or failed to do that which it ought to do.
4. The Applicant must also show that he or those whom he seeks to represent has/have been affected
by the acts or omissions of the public body
Carson Hamilton – Cape Law Page 2
The Grounds for Judicial Review
The main grounds upon which the courts will now interfere to assert their supervisory role are:
1. Where the powers exercised are ultra vires the powers of the tribunal, body or official.
2. Where there has been improper delegation of that power.
3. Where there has been infringement of the rules of natural justice and legitimate expectation.
4. Where there has been an abuse of discretion.
5. Where there has been an error of law or fact appearing on the face of the record.
➢ CCSU v. Minister for the Civil Services [1985]
- Lord Diplock sought to rationalize the grounds for Judicial review into three (3) categories
1) Precedural impropriety – covers the failure by the decision-maker to observe procedural rules that
are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to
observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra
vires).
2) Irrationality – also referred to as Wednesbury unreasonableness. In Associated Provincial Picture
Houses Ltd v Wednesbury Corp (1948) the Court of Appeal held that a court could interfere with a
decision that was 'so unreasonable that no reasonable authority could ever have come to it'. Lord
Diplock said that this 'applies to a decision which 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 to be
decided could have arrived at it.' This ground has been used to prevent powers from being abused
by, for example, exercising discretion for an improper purpose or without taking into account all
relevant considerations.
3) Illegality - means that the decision-maker must understand correctly the law that regulates his
decision-making power and must give effect to it. Whether he has or not is a question to be decided
in the event of dispute by judges. This would mean that when a power vested in a decision-maker is
exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra
vires).
Professor Fiadjoe has added a fouth category that he thinks is important to the Caribbean states:
unconstitutionality
Carson Hamilton – Cape Law Page 3
(i) ULTRA VIRES DOCTRINE
- Ultra Vires: this means that a public (or private) body that has been granted powers, whether by statute, Order
in Council, or some other instrument, must not exceed the powers granted. Its powers would have been
exceeded if:
1) It has done or decided to do an act that it does not have the legal capacity
to do; ie. If it has exceeded its jurisdiction in the narrow or strict sense, or
2) If in the course of doing or deciding to do something that is ultra vires in
the strict or narrow sense, it acts improperly or unreasonably in various
ways: these ways include:
a) disregard of the rules of natural justice;
b) unfairness
c) taking into account irrelevant considerations;
d) bad faith
e) fettering discretion
f) attempting to raise taxation
g) interfering with the free exercise of public liberties; etc.
Parliament is presumed not to have intended that the authority should act in breach of these principles of good
administration. This presumption is rebuttable in the sense that, if the instrument granting then power clearly
intends that these principles are not to apply, the courts will give precedence to the terms of the Act or
instrument. However, the cases on ouster clauses indicate that the courts are very reluctant to allow statute to
override these principles.
Substantive Ultra Vires
This occurs when a public authority does something which is not authorized by statute. Where a public
authority has been granted powers, whether by the constitution, statute or some other instrument, it must
not exceed the powers so granted. Such public authority will be taken to have exceeded such powers if it
has decided to do an act that it does not have the legal capacity to do.
Procedural Ultra Vires
This occurs when a public authority fails to follow procedure laid down by the law.
In instances where there is no set procedure the courts have taken the liberty to prescribe conditions of
fair procedure in the decision making process.
Carson Hamilton – Cape Law Page 4
(ii) BREACH OF ONE’S FUNDAMENTAL RIGHTS
The fundamental rights stated in all of the Commonwealth Caribbean Constitutions offer protection to every
citizen and are also justifiable. This means that one can seek enforcement of one’s fundamental rights in a court
of law.
Below is a list of some of our rights which are protected by and enshrined within the Fundamental Rights
section of Commonwealth Caribbean Constitutions:
(a) The right to life
(b) The right to protection of the law/due process
(c) The right not to be discriminated against
(d) The right to freedom of expression
(e) The right to protection from deprivation of property
Let us now consider the court’s attitude toward breaches of any of the fundamental rights provisions of the
Constitution. The case below is illustrative of the court’s power to declare that a bit of legislation is invalid and
to set it aside for being unconstitutional.
❖ Inland Revenue Commissioner And Attorney General v Lilleyman And Others (1964)
This was the first Guyanese case on fundamental rights breaches to be reported in the West Indian Law Reports.
It was determined on appeal by the British Caribbean Court of Appeal. Here, a challenge was brought against
legislation imposing compulsory savings on the citizenry. The legislation was held to be unconstitutional in
that:
1) the levy under the National Development Savings Levy Ordinance,1962, No.16 [B.G.], is in the
nature of a forced loan, and is neither a tax nor a due, and is therefore not protected by article
12(3)(a) of the Constitution; the Ordinance is subsequently ultra vires the legislature.
2) The power to legislate for the peace, order and good governance of the country does not authorize
the enactment of a law which contravenes the provisions of the constitution which gives such power,
even though such a law has been duly passed by the legislature
3) That money was property within the meaning of article 12(i) of the constitution. (Remember no
compulsory acquisition of property)
The case also involves the protection of the individual’s right to property (money) which is enshrined in what is
now article 142 of the 1980 Constitution of Guyana under the Fundamental Rights section: Put simply, the
government sought to compulsorily acquire the property of citizens through forced loans to the government in
the form of a levy which was created by parliamentary enactment. The court held that despite the fact that this
move to take people’s money was supported by statute it was nevertheless bad for being contrary to article 12 of
the 1960 Constitution of Guyana.
Carson Hamilton – Cape Law Page 5
The case that follows is an important case for examining the protection afforded the individual by the court and
which protection extends also to breaches occasioned by the court itself.
❖ Maharaj v Attorney- General of Trinidad and Tobago (No. 2) [1978]
Mr. Maharaj, a barrister was committed to prison by a High Court Judge to serve seven days for contempt of court. On the
same day the appellant applied ex parte by a motion to another High Court judge claiming … redress for alleged
contravention of his right under section 1 (a) of the Constitution of Trinidad and Tobago not to be deprived of liberty
except by due process of law.
The redress claimed was, inter alia, an order for immediate release from prison pending final determination of the motion
and damages for wrongful detention and false imprisonment against the respondent, the Attorney-General as
representative of the State. The judge ordered that the appellant be released from prison forthwith.
On the substantive hearing of the motion, a third judge (Scott J.) dismissed the motion and ordered the appellant to serve
the remaining six days of his sentence, which he served.
He appealed against the decision of the Court of Appeal. Whilst the appeal was pending he obtained special leave to
appeal to the Judicial Committee of the Privy Council against the committal order made on the 17th April. On the 27th day
of July 1976 the Judicial Committee allowed that appeal on the ground that the judge who made the committal order had
failed to specify sufficiently the nature of the contempt charged against the appellant before committing him to prison and
held that in consequence the committal order was invalid.
On the 29th April 1977 the Court of Appeal dismissed the appeal relating to the motion on the ground that although a High
Court judge had jurisdiction under section 6 of the Constitution to grant the appellant redress for contravention of his
constitutional rights which resulted from something done by another High Court judge acting in his judicial capacity, the
failure of the judge to inform the appellant of the nature of the contempt charged did not contravene his rights under
section 1 (a) of the Constitution.
The appellant appealed to the Judicial Committee of the Privy Council against the decision held:
1. Because the motion was an inquiry into whether the procedure adopted by Maharaj J. before
committing the appellant to prison was a breach of his fundamental rights, Scott J. had jurisdiction to
entertain the motion.
2. Maharaj J. acted in breach of the common law procedure for committing a person to prison for
contempt and that when the Constitution came into being this procedure became entrenched into it
thereby protecting the right of the appellant under s 1 and s 1,2 and 3 thereof to due process of law.
3. By the operation of section 1 the Constitution created a remedy against interference with the rights or
freedoms protected by s 1. The appellant was therefore entitled to any other available remedy. Flowing
from this was
(a) his right to apply to the High Court for redress under section 6(1) with respect to his
imprisonment …
Carson Hamilton – Cape Law Page 6
(iii) BREACH OF A PROVISION OF THE CONSTITUTION OTHER THAN FUNDAMENTAL
RIGHTS
All Commonwealth Caribbean Constitutions contain sections which lay down certain principles that operate
outside of the Fundamental Rights section.
One of these principles deals with the separation of powers whereby it is decreed that the three arms of the
State, that is, the legislature, the executive and the judiciary cannot perform the functions of each other. This
is known as the doctrine of the separation of powers.
Note: Nowhere is the doctrine of the separation of powers more powerfully illustrated than in the Caribbean
locus classicus of Hinds v R wherein the provisions of the 1974 Act came under scrutiny by the Jamaican
Court of Appeal. Revisit your notes on this.
(iv) BREACH OF THE PROVISION OF SOME STATUTE OTHER THAN THE CONSTITUTION
We are now about to discuss a case which illustrates what can happen when an individual or a group of
individuals act in breach of a provision in a statute.
Hope by now you all understand the difference between the constitution and an ordinary piece of legislation
(statute). We looked at this when we did Sources of Law in legal systems. While the constitution itself is a piece
of legislation it is by no means similar to other legislations as it is the grund norm – the superior source of law
in any country.
❖ Collymore v Attorney General
The appellants had acted in breach of section 34 of the Stabilization Act which prohibited a worker from taking
part in a strike in connection with any trade union unless the Minister of Labour failed to refer the dispute to the
Industrial Court. The appellants being members of the Oilfield Workers Trade Union unsuccessfully moved the
High Court to declare as ultra vires the Industrial Stabilization Act of 1965.
The appellants in their motion alleged that apart from being otherwise repugnant to the constitution, certain
provisions of the Act infringed the right of free collective bargaining and the right to strike. These rights they
alleged were common law rights which were accordingly encompassed in the right to freedom of association
which is specifically recognized and declared in the fundamental rights section of the constitution.
It was held inter alia that the right of free collective bargaining and the right to strike were not included in the
fundamental freedom of association recognized and declared by section 1(i) of the constitution and were
consequently not protected under the provisions of sec. 2 and 6 of the constitution.
Please Note: The disability under which the oil workers laboured was two-fold:
1. The rights (the right to strike and the right to free collective bargaining) which they sought to enforce
were not protected under the fundamental rights section of the constitution and
2. No statutory enactment was created to enforce the alleged common law right to free collective bargaining
and the common law right to strike.
This fact rendered the alleged rights unenforceable at law.
Carson Hamilton – Cape Law Page 7
Remedies Available Under Judicial Review
1. Certiorari – This is a type of writ seeking judicial review. It is a formal request to a court
challenging a legal decision of an administrative tribunal, judicial office or organization (eg.
government) alleging that the decision has been irregular or incomplete or if there has been an error
of law. It is available in cases where there has been excess of jurisdiction, want of jurisdiction, abuse
of powers.
2. Declaration is a discretionary remedy which takes the form of a statement by the High Court that an
individual possesses a particular legal status, right or obligation.
3. Injunction is another discretionary order of the High Court which prevents a tribunal, official or
statutory body from performing a particular act.
4. Mandamus [ is the Latin word for ‘we command’ ]. It is a prerogative order of the High Court
instructing an official, or tribunal to perform a specified public duty relating to its responsibilities.
For example, an instruction that the tribunal of official hear a particular dispute.
5. Prohibition is a remedy granted by the High Court and which bars an inferior tribunal, official or
administrative body from the performance of a particular act.
6. Damages is a form of compensation in money terms which is granted by an order of the High Court.
Such an order seeks to put the individual back into the position that he or she was before the
commission of the wrongful act of which the individual has complained.
7. Restitution is used to restore to a party, money or property which has been unlawfully retained by a
public authority.
8. Habeas Corpus is a Latin term meaning ‘let us have the body’. It is an application for an order of
the High Court against an inferior tribunal official or statutory body (usually the Commissioner of
Police) to produce (usually in court) a person being held in breach of that individual’s constitutional
and/or fundamental rights. It is a writ, or legal action, through which a prisoner can be released from
unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought
by the prisoner or by another person coming to their aid.
Carson Hamilton – Cape Law Page 8
