Judicial Review

Critically assess the constitutional role of judicial review in upholding the sovereignty of parliament and rule of law. How effective are the courts in fulfilling this role? - Justin Santiago

Judicial review is the legal process by which the courts control the exercise of power by a public body. Grounds for judicial review involve the concept of ultra vires and the rules of natural justice. As the cornerstone of administrative law, it attempts to exert independent judicial control over the Executive and to safeguard the rights of the individual dealing with the state – a monumental task indeed!

- Upholding the sovereignty of Parliament

The doctrine of parliamentary sovereignty coupled with the separation of powers severely limits judicial review. A powerful Parliament and even more powerful Executive mean that in reality the courts become subservient to Parliament when it comes to judicial review.

Judicial review does not attempt to deny or invalidate the power that has been granted under statute or prerogative but merely examines the conduct of the exercise to establish that the decision made or action taken, was done in line with this power. Because of the supreme nature of Parliament and the fact that it is democratically elected the extent to which the non-elected judiciary can control the exercise of powers by public bodies is tremendously challenged.

The role for the courts is strictly interpretative and to give effect to the will of Parliament. Thus courts are not concerned with the justice of the rules but with manner in which decisions have been taken and are they within the rules – intra vires or ultra vires. Case law has developed over time to determine what amounts to acting ultra vires or intra vires such as if a power has been used for a wrong purpose : AG v Fulham Corporation or where there is a failure to act in a reasonable manner : Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury principles of reasonableness) but nowhere does it state that a power can be declared null and void.

The Human Rights Act 1998 (HRA 1998) has to some extent addressed this situation where a court can address whether a public body has violated articles of the European Convention on Human Rights. The HRA 1998 has introduced the doctrine of proportionality which confines the limit of the exercise of power to means which are proportional to the objective to be pursued. The case of R v Chief Constable of Sussex ex parte International Trader’s Ferry Ltd interpreted proportionality as appropriate measures which was more defined than the principles annunciated in Wednesbury whether the decision in question was one which a reasonable authority could reach.

But even this particular legislation limits the right of the court to declare a particular legislation incompatible but not invalid thus upholding the doctrine of parliamentary sovereignty even though the particular legislation violates human rights ex. The Anti Crime and Terrorism Suspects Act 2001.

- Upholding the Rule of Law

The Rule of Law as defined by Dicey - that no one is punishable except for a distinct breach of the law, no one is above the law and the courts are the protectors of individuals’ rights and liberties does not hold true for judicial review. There are several criticisms leveled at judicial review which fail to apply the rule of law and fails to safeguard the rights of individuals against the state :-
1. Review is only possible where an allegation of ultra vires action is made out and there are very strict rules to determine whether the power is exercised ultra vires or not. Three factors as decided in the case of the Council of Civil Service Unions v Minister for the Civil Service or the GCHQ case would determine this :-

a. illegality – the powers are not in excess of those given
b. irrationality – whether it was so unreasonable that no reasonable authority could ever have come to it and
c. procedural impropriety – where procedural rules were not followed and where there was a failure to observe basic rules of natural justice.

However there are many forms of intra vires action that are objectionable or questionable such as delay or loss of documents that cannot be corrected by means of judicial review. Furthermore the matter may not be resolved speedily : O’Reilly v Mackman – justice delayed is justice denied.

In the GCHQ case, the House of Lords additionally identified the categories of decisions that would be immune from judicial review under the concept of non- justiciability. Amongst these are the making of treaties, the dissolution of Parliament, the appointment of ministers, declaration of war and peace and matters relating to the granting of honours and these are prerogatives which are determined by the Executive not by the courts. This undermines the Rule of Law in that the power of the courts were limited to protecting the rights and liberties of individuals in matters that were justiciable. Also it places too much power in the hands of the Executive to determine what is justiciable and what is not. The correctness of a decision becomes more a question of policy rather than legality : R v Secretary of State for the Home Department ex parte Cheblak.

2. Once a court has decided a particular decision to have been unlawful, the results may prove the whole process to have been futile. The decision may simply be ignored by the administrative body in question.

3. Judicial review only concerns those cases coming before it and a conflict must arise before there is any review. There may be many practices that are not challenged by way of judicial review because those affected are ignorant, impecunious, cannot be bothered or simply accept the actions of administrators unquestioningly.

4. Judicial review is also discretionary and there will be a lot of value judgements placed on what is reasonable and what is fair leading in uncertainty as to the remedies : Ward v Bradford Corporation.

In conclusion judicial review although it attempts to uphold the rule of law can be circumscribed by the doctrine of parliamentary sovereignty and an administration that is unconcerned with the rule of law.

Example of limitations of Judicial Review

No release for Hindraf 5, Federal Court rules
The Malaysian Insider, 12 Feb 2009

PUTRAJAYA, Feb 11 — The Federal Court today ruled to uphold the detention of five ethnic Indian leaders of the Hindu Rights Action Force under the Internal Security Act (ISA) for the next two years.

The apex court dismissed the application to review the habeas corpus suit, leaving the five leaders of the banned Indian rights movement — better known by its acronym Hindraf — stuck behind the high security walls in Kamunting, Perak, where a constitutional crisis is crippling the daily administration of the state government.

The Hindraf 5, as they have come to be known, are lawyers M. Manoharan who is also Selangor state lawmaker for Kota Alam; P. Uthayakumar, brother to self-exiled Hindraf leader P. Waytha Moorthy; V. Ganabatirau; R. Kenghadharan; and former bank officer K. Vasantha Kumar.

They were arrested under the ISA two years ago on Dec 13 for taking part in an illegal mass protest in Kuala Lumpur.

It was a unanimous decision among the three-member panel of judges.

An appeal was made to the same court last May.

The Federal Court then, like today, denied release to the Hindraf 5.

The panel then headed by Datuk Alauddin Mohd Sheriff (who is now the President of the Court of Appeal), ruled that Prime Minister Datuk Seri Abdullah Badawi had acted lawfully as the then Internal Security Minister when he ordered the detention of the Hindraf 5.

In reading out the Federal Court verdict, Justice Datuk Nik Hashim Nik Abdul Rahman, explained that the apex court’s earlier ruling was made based on a previous court decision involving Mohamad Ezam Mohd Nor, once Opposition Leader Datuk Seri Anwar Ibrahim’s right-hand man in the early days of Reformasi I.

Nik Hashim noted: “Whether the Federal Court was right or wrong is not for us to decide. If we decide to do so, it will lead to another appeal.

“Thus, we find that this case is not a fit case for review. Therefore, we dismiss the motion,” he added.