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What’s all this fuss about Judicial Review?

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In the past days, the ‘Malaŵian’ section of social media has been abuzz with the matter before the High Court in Mzuzu. A Malaŵian and some Civil Society Organisations have sought Judicial Review of events surrounding the now infamous Maizegate and Commission of Enquiry appointed by the President. Now the purpose of this article is not to discuss the Maizegate or the merits of the matter before the Court. This article is aimed at clarifying some of the issues around the matter before the Court.

Judicial Review

Judicial Review is a legal process that originated in England. It came to Malaŵi as part of the English Legal System which we adopted as part of our colonial history. Judicial Review is specialised part of what is called Administrative Law. It is common in countries whose legal system is based on the Common Law. The Common Law is a legal system that developed out of local customs in the mid-ages in England. In a way, it is similar (although not exactly) to Customary Law. It emerged as a body of rules to largely address procedural remedies. The development of the Common Law was not through Statutes (Acts of Parliament) but rather through judicial decisions. It was, therefore, judges who developed, and continue to develop the Common Law. It is for this reason that it is sometimes called Judge-Made Law.

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So contrary to what may have been written, the practical reality is that judges do in fact make law. This is to distinguish it from the other forms of laws which are made by Parliament. The Common Law today embraces another form of law called Equity. Equity was a body of law that developed to address substantial remedies where the Common Law was seen as being rigid. Although we now have Statutory Law, the Common Law and Customary Law as part of our law in Malaŵi, the system is still called the Common Law System.

What distinguishes the Common Law from other legal systems is that it is an Adversarial System. This means adversaries ‘fight over’ some legal issues before the court. Sometimes the fights can be bitter but they are fights of words and legal technicality as opposed to fists. There are therefore basically two sides to a matter. There may be more than two parties but there will usually be two main adversaries. In a way, it is not too dissimilar to the secondary school debates where you have the Proposer and the Opposer. It is these two sides that argue their case before the Court. When we say Court, we are not referring to the building where the matter is heard. We are referring to the judge or magistrate or any presiding judicial officer(s). In an Adversarial System, the judge is a neutral arbiter who must decide on the matter. Their duty is to listen to both sides of the argument and adjudicate the dispute (come up with a decision) based on the law. The duty of the adversaries is to convince the judge that their version of events as supported by the law is the correct one. The judge does this by applying the law to the facts. It is highly important that this is clearly understood.

I have read a lot of comments in this case and in other cases where people have made not-so-flattering remarks about the Court. We forget that it is not the Court that brought the matter before itself but the parties to the dispute. The duty of the Court is to simply adjudicate the matter based only on what has been presented before it, and nothing else. If there is anything worth remembering; it is that the Court is a neutral arbiter. The Court is the one that gets moved by parties. If the parties do not go to Court, the Court will not do anything. Let us remember that.

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But what is Judicial Review?

This is a type of a “court proceeding in which a judge reviews the lawfulness of a decision or action or failure to act, by a public body exercising a public function.” It is, therefore, concerned with three things: decision, action and failure to act

The decision, action or inaction must be by a public body. A public body may be a person working in public capacity or a public entity. Judicial Review is, therefore, concerned about the processes rather than the decision itself unless the decision is manifestly unlawful or wrong. Therefore, the real parties to a Judicial Review proceeding are the State and whosoever is being called upon to answer. These are called the respondents. The application is usually made by citizens or groups or bodies that feel that the public body or person has failed to discharge their public duty. Put simply, in Judicial Review proceedings, the State calls upon one of its organs [respondent(s)] to answer to some ‘complaint’ that a member of the public or some other body has made.

Now who is the State? The State is an embodiment of all of us. We comprise the State. We are therefore collectively the ones in Judicial Review proceedings asking the respondents to explain their decision, action or inaction. It is us asking the respondents to answer. Now that is sobering! Judicial Review is a way of supervising “the administrative decision-making” process. Because of its nature, it is “a fast, effective and powerful way to convince a public body to reconsider a decision or force them to take action they should be taking.”

On the oft-cited issue that no decision has been made, therefore, no Judicial review may lie, this is what Justice Chikopa said:

There are two ways of looking at this … First is to consider whether as a matter of general principle no judicial review should lie in every case where a public office or officer claims to have made no decision on the matter before him. The answer should be in the negative. There will be instances where a public office or officer decides not to make a decision. The complaint in that instance will be the public officer’s or office’s very inability or unwillingness to decide. We think that in those instances courts should allow sufficiently interested citizens to move for a review of the officer’s or office’s decision not to decide. If the Courts did not, they would be party to allowing capricious public officers and/or offices hide behind such inability/unwillingness and deny citizens what is otherwise their entitlement. We, therefore, refuse to throw out the Applicants’ application merely because the Respondent claims to have made no decision …

In terms of the procedure, before the Court hears an application for Judicial Review, there is a preliminary process that must be followed. The legal term is called granting leave. This means the Court has given permission for the application to be made. In other words, the Court can refuse to grant leave where it considers that the application is vexatious, frivolous or raises no arguable or triable issues. Vexatious refers to an action brought simply to annoy or frustrate but which has insufficient grounds for winning. Frivolous simply refers to an action that may best be described as being merely silly or trifling. The purpose of this process is to weed out claims of this type. An application for leave to commence Judicial Review proceedings is normally filed ex parte. This means it is heard only from one side, the applicant. There may be circumstances in which the Court may order that an inter partes hearing be done. This is where the Court wants to give the respondent(s) an opportunity to be heard on whether leave should be granted or not. However, the default position is that the applications are made ex parte. When the Court refuses to grant leave, then that is the end of that application. It suffers a stillborn death.

Now where the Court grants leave, there will be some interim ancillary orders or reliefs that the applicants would have asked (prayed) for. This is where it becomes tricky. On the grant of leave, the Court may also grant the interim reliefs that have been prayed for. These are mostly in the following forms: injunction —a court order prohibiting a person from doing something or requiring them to do something; stay of proceedings—a halt or stop to proceedings, apart from steps allowed by the rules or by the terms of the stay (maintain status quo). A stay can be granted after the decision has been implemented; and interim declarations.

Now the grant of any interim relief is always discretionary. The Court may refuse to make such a grant. It is up to the applicants to convince the courts, at face value (prima facie) that it is in the interest of justice to grant such a relief. Now the term interest of justice has raised a lot of debate. What does it really mean? When a court makes a determination, the ‘winning’ side says the interest of justice has been served while the losing side laments that the interest of justice has not been served. How is it then possible that in the same one case, justice can both be served and not served? Well, the answer to this is that there is a difference between justice and justice according to law. The courts dispense justice according to law. As individuals, we all have our own perceptions of justice. It is imperative, therefore, that we distinguish this from the justice dispensed in Court. So what am I really saying? No matter the outcome of a case, justice is always served. The law always triumphs. This is because the Court, as a neutral arbiter in an Adversarial System decides the case based on the facts and evidence before the Court, and not what is in the public domain. In determining an issue, the Court applies the law to the facts. That is what the process of judicial adjudication can be simplified to. That is justice according to law.

Now I did say earlier that the default position for application for leave for Judicial Review is that they are done ex parte. Therefore, it is normal that where an injunction is granted as an interim relief upon leave being granted in Judicial Review proceedings, it will be granted ex parte. Put in another way, there is nothing amiss with an injunction in an application for Judicial Review being granted ex parte. In fact, interlocutory injunctions even in other cases are normally granted ex parte. The granting of an injunction usually follows a preliminary inquiry in which the applicants must demonstrate prima facie that: there is/are serious issue(s) to be tried; damages (compensation) would be an inadequate remedy for the applicant; and the balance of convenience lies in the granting of the injunction.

To be continued…

(The author blogs as Mfundisi)

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