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Public Law

Judicial Review

Introduction
What is judicial review? The power of judicial review may be defined as the
power of the jurisdiction of the superior courts to review laws, decisions, acts
and omissions of public authorities in order ot ensure that they act within
their given powers. Broadly speaking, it is the power of the courts to keep
public authorities within proper bounds and legality. To the extent that it is
employed as a fetter on the state power, it is a most important constitutional
tool. For example a public authority must direct itself properly on the law and
must not use its powers for improper purposes. It must be noted that the
court has no power suo motu to apply judicial review. Its jurisdiction is always
invoked at the at the instance of a person who is prejudiced or aggrieved by
an act or omission of a public authority. Once an applicant satisfies the
requirement of locus standi, an applicant may bring proceeding for judicial
review even if there is no decision on which a prerogative order can legally
rest.
Additionally, the court has power, in judicial review application, to
declare as unconstitutional, law or governmental action which is inconsistent
with the constitution.
As stated by Tracy Robinson, judicial review also establishes a clear
nexus with the supremacy of the constitution, in addition to placing a grave
duty and responsibility on the judiciary.
It is important to contrast the power of judicial review in the Caribbean with
what prevails in the UK, where, because of the doctrine of parliamentary
supremacy, the courts do not have the power to question the legality and

constitutionality of primary legislation. That remains the position today,


despite the acknowledgement of modern text writers that one of the impacts
of Britains participation in European Union is that parliamentary supremacy
may no longer be regarded as the corner stone of British Constitutional Law.
Lord Nolan, in 1996 Radcliffe Lectures, has admitted that while as a matter
of law Parliaments ultimate sovereignty remains intact, its influence has
diminished over the years, and external developments, which it is unable to
control, are tending to diminish that influence further. 1 Without saying so, the
statement appears to sound the death knell of the UK Parliaments
sovereignty. In the UK as far as parliamentary legislation is concerned, all
that the court can do is to declare the law. 2 This is also true because Britain
has no written constitution against which to measure the legality of
Parliament.3 However, the English courts have claimed the right to review the
manner in which public authorities exercise the power conferred on them by
the legislature by literally claiming (a) an inherent right to uphold the law (b)
a duty to give effect to the intention of parliament. Today, there is no
question but that judicial review of the commonwealth Caribbean is taken for
granted.
None

of

the

[Caribbean]

constitutions

has

attempted

to

perpetuate the doctrine of the legal omnipotence of Parliament


acting by way of ordinary procedure The constitutions abound
with restrictions on the legislative authority of parliament... such
restrictions today naturally suggest to the lawyer the existence
of judicial review.4
It must also be noted that the constitution, also bequeath to our
jurisprudence the constitutional motion for the protection of fundamental
1

Lord Nolan and Sedley, 1997, p 6.

British Railway Board v Pickin [1974] AC 765

Thompson, Allen and Walsh, 1994, p 456.

Carnegie, 1971.

right and freedoms. Any infringement of these rights and freedoms by both
the executive and the legislature could be restrained by a constitutional
motion.
Aggrieved persons could apply to the High Court for redress for any
contravention or likely contravention of these rights. The High Court was left
with a wide amplitude for appropriate redress.
The beauty of the constitutional motion was that it could be:
(a) combine with judicial review
(b)used to enforce substantive as well as procedural rights; and
(c) Invoked in the participation of a threaten breach.
DISTINCTION BETWEEN REVIEW AND APPEAL
For better appreciation of the doctrine of judicial review, one must note the
distinction between review and appeal.
Even at this early stage, it is important to appreciate the distinction between
review and appeal, for judicial review proceedings the courts claim to
exercise, supervisory, not appellate jurisdiction. These are all somewhat
artificial and very confusing because, as we shall soon see, there is certainly
some overlap between the two processes.
An appeal involves the transfer of a case from a lower court to a higher
one for the purpose of re-hearing. The right of appeal is usually conferred by
statute, which normally sets out the circumstances under which it may be
invoked. Like judicial review, appeals also provide an avenue for the
protection of citizens rights, but unlike judicial review, their origins are not
founded on the common law.
We may note some features of appeal. First, right of appeal is usually
statutory. Second, where a statute does not restrict the grounds of appeal an

appellate court is generally is generally required to decide whether the


decision of the trial court was right or wrong. If it should come to the
conclusion that the decision was wrong, the appellate court is entitled to
substitute its decision for that of the authority which first determined the
matter. Appeal may be on questions of law, facts and discretion, or on law
and facts only, or on law only, or even on the merits of a decision. The
grounds of appeal may also vary, and range from a complete rehearing of a
case to an appeal on a narrow point of law only. An appeal body may either
substitute its decision for that appealed from, or remit the matter to be
heard de novo.
Judicial review, unlike appeal, allows a person to challenge the acts or
omission of public authority for legality. Such challenges may be mounted on
the basis of the grounds for review which the courts have developed over
time, and which Lord Diplock has compressed into illegality, irrationality
and procedural impropriety. Until recently, judicial review only applied to
public bodies.
In judicial review proceedings, it is important to remember that the remedy is
not intended to detract from properly constituted authorities the power
vested him them. In other words, it is not permitted to substitute the courts
as the bodies making decisions. It is intended, however, that the relevant
authorities use their powers in a proper manner. In Council of Civil Service
Unions v Minister for Civil service,5 Lord Brightman attempted to capture the
point by saying:
Judicial review is concerned, not with the decision, but with the
decision making process. Unless that restriction on the power of
the court is observed, the court will, in my view, under the guise
of preventing abuse of power, be itself guilty of usurping powers.
THE GROUNDS FOR JUDICIAL REVIEW
5

[1985] AC 374

Lord Diplock has in recent times sought to rationalize the grounds for judicial
review into three categories: procedural impropriety, irrationality and
illegality. Lord Diplock may be forgiven for not adding the fourth and most
important

category

as

far as the Caribbean states

are concerned:

unconstitutionality.
The ultra vires
In light of the fundamental rights provision in Caribbean Constitutions, it is n
now permissible to frame a challenge to administrative action in terms of
both the common law and the constitution. Of course, the possibility that
administrative actions may also violate the fundamental rights provisions
means that the court of law must be extremely careful in balancing
competing interest of the public in coming to a conclusion on a matter.
The principal weapon in judicial armoury for the control of State power has
traditionally been the doctrine of ultra vires. Professor Wade calls ultra vires
the central principle of administrative law. Ultra vires is a Latin phrase
meaning, simply, acting beyond ones power or authority. The general idea
behind the term is that a decision or action of the functionary is said to be
ultra vires when that functionary acts outside the ambit or scope of its
authority. The doctrine of ultra vires of ultra vires is not limited to public law.
So it is important that one appreciates the several contexts in which the term
is used. One area of very wide use of the doctrine of ultra vires is in relation
to subsidiary legislation. Here the doctrine is used essentially as a means of
controlling abuse of power by the executive arm of government. 6
While it is true to say that the ultra vires principle has waned in importance
as the cornerstone of judicial review, it is still important to remember that
focusing on the ultra vires doctrine helps at least to identify the utility of that
principle in the context of litigation. Among its important attributes is the
reminder that judicial review is concerned with defining the scope of State
6

Hoffman LaRoche v Sec of State [1974] 3 ALL ER 104, pp 131-32

power and that most of its presumptions are to be view in the context of
statutory interpretation. It also provides a broad, general principle for judicial
review. Of greater importance today, is the fact that the courts have based
the development of modern public law principally on the exercise of
discretion and the maintenance of the principles of good administration. In
ideological terms, the courts and government are seeing themselves in a
new and special relationship pursuing this common aim.7
Ultra vires then, is a conceptual tool used as a conclusion for every type of
successful challenge of unlawful decision or action of any functionary
purporting to exercise statutory or constitutionally conferred authority.
Substantive Ultra vires
Substantive ultra vires occurs when a public authority does something which
is not authorized by statute. Put simply, a public authority that has been
granted powers, whether by the constitution, statute or some other
instrument, must not exceed the power so granted. It will be taken to have
exceeded it powers if it has done or decided to do an act that it does not
have the legal capacity to do.
It

is

important

to

appreciate

that

statutes

are

not

wholly

comprehensive. Sometimes, powers are left to be implied. What happens in


such situation? Here we invoke the reasonably incidental rule. This means
that when a statute grants powers, an administrator is permitted to do all
that is reasonably incidental to those powers. In Taylor v Mayor, AldermenCitizens of Bridgetown,8 had no difficulty in holding that the statutory right to
create posts walks hand in hand with the right to abolish such post.
However, in AG v Coconut Marketing Board,9 it was held that a board which
had the power to trade in coconut and coconut products had no incidental
7

R v Lancashire County Council ex p Huddlestone [1986] 2 ALL ER 94, p 945

(1967) 13 WIR 368

(1944) 4 JLR 189

power to manufacture coconut products. A great deal therefore turns on the


interpretation and construction of a statute, especially where its language is
ambiguous. The issue is one of purely statutory interpretation.
In the case of Ali v Elations and Boundaries Commission, shows that
creatures of statutes have no choice in complying completely with their
statutory powers. Whereas, in this case, the Election and Boundaries
Commission chose to comply substantially with its powers, but eventually
ignored full compliance with the Election Regulation Rules, the court had not
difficulty in quashing its decision to remove the applicants name from the
register of voters.
An issue has arisen as to whether a constitutionally protected office, such as
the Director of Public Prosecution, is immune from judicial review. This issue
was demonstrated in Sharma v DPP.10 It was noted in the said case that,
even though it was well established that judicial review of a prosecutorial
decision, is available in principle it is a highly exceptional remedy. 11
The decision of the director to consent to the prosecution of an
individual is not amenable to judicial review. Some of the reasons are
adumbrated:
(a) the great width of the DPPs discretion and polycentric character of
official decision making in such matters including policy and public
interest considerations which are not susceptible of judicial review
because it is neither within the constitutional function nor the practical
competence of the courts to assess their merits.12

10

[2006] UK PC 57 (Privy Council Appeal No 75 of 2006).

11

R v Inland Revenue Commissioner ex p Mead [193] 1 ALL ER 772, 782

12

R v Horseferry Road Magistrates Court ex p Bennett [1994] 1 AC 42.

(b)the wide range of factors relating to available evidence, the public


interest and perhaps other matters which [the prosecutor] may properly
take into account
(c) The delay inevitably caused to the criminal trial if it proceeds.
On these principles the decision to prosecute was left undisturbed.
Procedural ultra vires
Such situations occur when a public authority fails to follow procedures law
down by law. These procedures may involve consultation with others, 13 the
imposition of time limits or the improper form in which an order may be
executed.
Two difficulties stand out in this regard. First, how may a functionary arrive at
a decision when no set procedures have been laid down in law? The courts
have taken the liberty to prescribe conditions of fair procedures in the
decision making process by filling in the interstices required.
Second what kind of breach will vitiate the decision? The traditional
approach has been to classify procedural breaches into mandatory and
discretionary breaches. The former vitiate a decision, while the latter does
not. In this regard the cases speak with a discordant note, and the courts
have not been consistent in their determination of what constitutes
discretionary and mandatory breaches. It would appear as though when a
provision is imperative its breach would be regarded as mandatory breach
(Singh v Public Service Commission).
Grounds Judicial Review:
(a) Improper delegation of proper.
Improper delegation is a species of ultra vires. This is so because
public authorities are required to act within their given powers. This
13

R v Devon County Council ex p Baker et al [1995] 1 ALL ER 73

means that they may not exercise powers which have been otherwise
conferred on someone else specifically.
The principle (delegatus non potest delegare) means that power
conferred on A must be exercise by A specifically. It cannot be
delegated to someone else.
Traditionally, a distinction has been drawn between judicial, legislative
and administrative powers. It was said then that judicial and legislative
powers could not be delegated14 but that, depending upon the context,
administrative powers could be delegated. The distinction as to what
administrative power could be delegated seems to revolve around the
question whether the power involved the exercise of an important
discretion. While a functionary could delegate the power to undertake
work preparatory to the decision making, the final decision had to be
made by the functionary so charged with the power.15
Obviously, the traditional approach provides a unhelpful way to
resolve

the

question

of

improper

delegation,

and

several

commentators on Caribbean Law have justifiably condemned this


approach. It is suggested that a better approach would be to leave the
question to the courts. In their determination they are to be guided in
all the circumstances of the case, including the level of the importance
of the discretion to be exercised.
Where a sanction is involved in the exercise of a delegated
power, then subdelegation may not be permitted. In the Guyanese
case of Glasgow v Cadogan, s 22(1) of the Employers and Servants
Ordinance, Cap 261, provided that, inter alia, that no contract of
service shall be enforced under s 21 unless the labourer who is to be
serve under it has been registered by a person appointed by the
14

Hagley v Lamothe [1897] 1 WLR194

15

Jeffs v NZ Dairies Board [1967] 1 AC 551

Governor in that behalf. The person so appointed by the Governor in


that behalf. The person so appointed by the Governor also delegated
his powers to another. In holding that the person appointed by the
Governor had no power to delegate his powers, the Chief Justice said:
The evidence shows that James Winter was appointed by
the Governor under this ordinance, and that he, James
Winter, took it upon himself to delegate these powers to
his nephew, Alexander Winter. This delegation of powers
by James Winter to his nephew was completely outside his
powers, even though he said that the Commissioner of
Mines agreed From the ordinance it was quite clear that
no one has the power to register unless he is directly
appointed by the Governor in that behalf.
Even where a power is expressly delegable, the delegation of related or
ancillary power may be prohibited. Such a situation is reflected in
cases of R v licensing Authority ex p Suntours. In the said case, it was
agreed that where a quasi-judicial body was appointed by virtue of a
statute, the function of that body had to be exercise by that whole
body, and not part, in the absence of express statutory provisions or
necessary implication to the contrary. As he had not been shown to
have had such powers, his purported appointment of a quorum of
authority was, therefore, ultra vires and void.
In the Rebeiro v da Silva, officers who had been vested with
discretionary powers by the mining regulations of 1931 for the issuing
prospecting licences could not lawfully delegate those powers to
others, unless there was express power to so delegate. Consequently,
licence issued by a clerk in the department was held to be a nullity.

(b)Rule of natural justice and legitimate expectation

When an individual seeks judicial review on the ground of his legitimate


expectation being defeated, Courts have to first determine whether there
existed a legitimate expectation. A legitimate expectation is said to arise
as a result of a promise, representation, practice or policy made, adopted
or

announced

by

or

on

behalf

of

government

or

public

authority. Therefore it extends to a benefit that an individual has received


and can legitimately expect to continue or a benefit that he expects to
receive.

Natural justice involves the application of procedural requirements


designed to achieve fairness in the decision making process. A failure
to do so is controlled by the courts basing themselves on the ultra
vires doctrine.
We will here only note salient points necessary for which may
provide grounds for judicial review. The first here is breach of rules of a
fair hearing (the audi alteram partem rule) and the second is a breach
of rule against bias (the nemo iudex causa rule). These rules provide a
scheme of basic fairness in the decision making process. It must be
pointed out that natural justice has spawned the concept of legitimate
expectation.
Since Ridge v Baldwin, restored the principle of natural justice to a
pedestal such that it is perhaps the most important developmental
area of law today. In this regard, Cooper v Wandsworth Board of Works,
stands out as a seminal case because Ridge v Baldwin was built on it.
In Cooper case, a local statute required of anyone intending to build a
new house to give notice to the board of workers seven days before
beginning construction. The statute gave the power to the Board to
cause such house or building to be demolished or altered in default of

such notice. There was some dispute as to whether Cooper has sent
such notice or not to the board. But the Board demolished his house
which has been substantially built. In a strong affirmation of basic
fairness, the court asserted a common law right to a hearing where a
statute is silent on the point, especially in the context of loss of
property. As Byles J put it:
a long course of decision establish that, although
there are no positive words in a statute requiring that the
party shall be heard, yet the justice of the common law will
supply the omission of the legislature.
A modern formulation of the same theme is to be found in Wiseman v
Borneman, where Lord Guest said:
It is reasonably clear on authorities that where a statutory
tribunal has been set up to decide final questions affecting parties
rights and duties, if the statute is silent upon the question, the courts
will imply into the statutory provision a rule that the principles of
natural justice should be applied.
For our purpose it is sufficient to appreciate that natural justice
represents nothing more than the imposition of certain procedural
safeguards on a body or person whose decisions may affect the rights,
interests and legitimate expectation of others. The courts have applied
those safeguards as a tool in the supervision of public bodies.
However, natural has been extended to clubs,16 associations, trade
unions17 and professional associations. In Baize v AG, per Phillips JA,
identified the twin pillars on which natural justice is said to rest,
namely: the right to a fair hearing and freedom from bias in an

16

Demerara Turf Club v Phang (1961) 3 WIR 454

17

Annamunthodo v OWTU [1961] AC 945

adjudicator.

However, it has been suggested that there is another

string to the bow at common law, and that is the concept of fairness.
While some judges still hang on to the old classifications, there is a
general acceptance of the notion of fairness as an additional limb to
the principles of natural justice. This shift is said to be a shift in focus
from the rules of natural justice to the development by the courts of
the duty to act fairly.18 It is possible to argue, that the courts
philosophy of justice has at its foundation the desire to be fair at all
times and that the principles of natural justice mere reflect that desire.
Indeed, the two principles of fair hearing and absence of bias in an
adjudicator are targeted to the decision maker precisely because those
principles are very significant aspects of fairness in the decision
making process.

1) Right to a fair hearing


We have already seen how, before the case of Ridge v Baldwin, it used
to be thought that the right to a fair hearing only applied to judicial
decisions. Ridge v Baldwin, stressed that, despite the great difficulty of
classifying powers into judicial, quasi judicial and administrative
components, the right to be heard had to depend on the consequences
of the decision to the individual rather than upon the nature of the
power in question. The approach was further expanded in the case of
Durrayapah v Fernando. It was held that a hearing was dependent
upon (a) the nature of the property, office or status of the complainant;
(b) the circumstances in which the authority is entitled to interfere; and
(c) whether the authority can impose punishment or sanctions.

18

McEldowney, 1994, p 476

Fair hearing does not mean a hearing according to what would be


required in the court of law. Basically, it means an opportunity to put
ones side of a case before a decision is reached. Accordingly, the legal
requirement on the adjudicator is nothing more than a basic duty of
fairness. Of course, in deciding on what is fair, the courts have to
balance several interests, such as those of the state, principles of good
administration, speed and efficiency in the decision making and the
level of injustice suffered by the individual in having been denied the
opportunity to present their case. There are no fixed rules, nor is there
any requirement that any rules of evidence should be followed or
applied.19 There is no insistence either that there must be an oral
hearing.20
The right to a fair hearing includes the following:
Right to make representation (to the decision maker)
Notice of a charge and full particulars thereof

Exceptions to the right to be heard


The right to be heard is not absolute. It may therefore be excluded for
good reason. The CCSU21 case illustrates one set of circumstances in
which the right to a fair hearing may be curtailed. Principal among
these are national security considerations. Lord Fraser explained the
point well by saying, the decision on whether the requirements of
national security outweigh the duty of fairness in any particular case is
for the government and not for the courts. In other words, there are
some matters, of which national security is one, which are not
19

Mahon v Air New Zealand Ltd [1948] AC 808

20

Lloyd v McMahon [1987] ALL ER 1118

21

[11985] AC 374

amenable to the judicial process. The principle has usually been


invoked in immigration cases as well. 22 In Rees v Crane, refers to a set
of circumstances in which a fair hearing may be denied to an applicant.
Among these may be the fact that the investigation is purely
preliminary, that there will be a full chance to deal adequately with the
complaints later, that the making of the inquiry without observing the
audi alteram partem maxim is justified by urgency or administrative
necessity, that no penalty or serious damage to reputation is inflicted
by proceeding to the next stage without such preliminary notice and
that the statutory scheme properly construed excludes such a right.
2) The Rule Against Bias
The right to a fair hearing would be a very hollow had it not been
twined with the requirement that the hearing should be before an
unbiased decision maker. Every person has a bias of one form or the
other based on their life experiences. The West Indian Constitutions
protect the rights of the citizens to an unbiased adjudication by
insisting on equality before the law and the protection of the law.

Bias could include:


i)

Financial interest

It is clearly established that a personal financial interest in a case,


however small, constitutes bias which would disqualify that person as a
decision maker; whether the interest is large or miniscule (R v
Hammond).
ii)
22

Non-pecuniary bias.

R v Secretary of State for Home Affairs ex p Hosenball [1977] 3 ALL ER 452.

We may examine non-pecuniary bias from two angles- judicial


decisions and administrative action. In the context of what may
style judicial decisions, the essential principle that the rule
fights against is the appearance of bias. Lord Hewarts famous
dictum in R v Sussex Justices ex p McCarthy, is usually cited in
support. There he said:
It is not merely of some importance but it is of
fundamental importance that justice should not only
be done but should manifestly and undoubtedly be
seen to be done.
It appears to be the view that a judicial officer is expected to
possess a degree of rationality and to be largely immune to certain
preconceptions. Similarly, in R v Ruel Gordon, where two information
was heard by a magistrate after each other and both resulted in
conviction, the court of Appeal in Jamaica held that the a resident
magistrate, being a trained lawyer, must be taken to have disabused
his mind of any knowledge he may have gained from previous case,
and must be taken to have applied himself to the issues presented to
him in the second information. Accordingly, there was no likely bias.
Exclusion of the rule against bias
In a practical world, there are times when the rule against bias must
give way on grounds of necessity. Such a situation must be illustrated
where no other decision maker is available to adjudicate on the matter.
In such a case, there is a presumption that Parliament implied
authorized the waiver of the rule against bias.
The Doctrine of Legitimate Expectation

The principle of legitimate expectation has been aptly described by


Robert Thomas23 as one that concerns the relationship between public
administration and the individual. It seeks to resolve the basic conflict
between

the

desire

to

protect

the

individuals

confidence

in

expectation raised by administrative conduct and the need for


administrators to purse the changing policy objectives. The principle
means that that expectations raised as a result of administrative
conduct may have legal consequences. Either the administration must
respect those expectations or provide compelling reasons why the
public interest must take priority. The principle therefore concerns the
degree to which an individuals expectation may be safeguarded in the
face of a change of policy of policy which tends to undermine them.
The role of the administrative courts is to determine the extent to
which the individuals expectation can be accommodated within the
changing policy objectives.
In McInnes v Onslow Fane, is a useful case to start with in the sense
that it drew a distinction between the attitude of natural justice to
rights and non-rights. Whereas natural justice would apply to
existing rights, the same did not apply to non rights. Expectation
cases was also singled out as one in which the applicant has some
legitimate expectation from what has already happened that his
application will be granted.
Here, however, the emphasis is on the non-rights cases that has fillip
the doctrine of legitimate expectation by way of a recognition of the
fact that some interest, other than legal rights, also deserve the
protection of law.

23

Thomas R, 2000, p 41

Its origins have been attributed to Lord Dennings judgment in Schmidt


v Secretary of State for home Affairs. In this case, American students
of scientology temporarily resident in the UK applied to have their stay
extended. The extension was refused because the government has
formed the view that scientology was objectionable and that its growth
in the UK should be curbed. The applicants argued that the Home
Secretarys decision not to consider the applications was unlawful and
void. That raised the question whether the duty to act fairly had
imposed on the government the added duty to be flexible in its
policies. Lord Denning addressed the point by saying:
It all depends on whether he has some right or interest or, I
would add, some legitimate expectation of which it would
not be fair to deprive him without hearing what he has to
say.
Applying the principles to the facts of the case, Lord Denning said:
A foreign alien has no right to enter this country except by
leave, and if he is given leave to come for a limited period,
he has no right to stay for a day longer than the permitted
time. If his right is revoked before the time limit expires,
he ought, I think, to be given an opportunity of making
representations:

for

he

would

have

legitimate

expectations: for he would have a legitimate expectation


of being allowed to stay for the permitted time. Except in
such a case, a foreign alien has no right- and, I would add,
no legitimate expectation- of being allowed to stay. He can
be refused without reasons given and without a hearing.
Once his time has expired, he has to go.
In the case of AG of Hong Kong v Ng Yuen Shiu, established the point
that expectation may be based on some statement or undertaking by,

or on behalf of, the public authority which has the duty of making the
decision, if the authority has through its officers, acted in a way that
would make it unfair or inconsistent with good administration for him
to be denied an inquiry.
Though it would appear, that the doctrine of legitimate
expectation is based on in natural justice and reasonableness, it would
however, be more accurate to say that the doctrine seems to rest on a
broader notion of fairness.
(c) Abuse of Discretion
Discretion

conferred

upon

public

authority

must

be

exercised

reasonably in accordance with the law. An abuse of discretion is a


wrongful exercise of the discretion conferred because it is the exercise
of a discretion for a power not intended. Accordingly, the courts may
control it by the use of the ultra vires doctrine.
Taking into account irrelevant or immaterial considerations
The basic rule is that a public functionary must not stray from the
confines of the power conferred upon him. He must factor into the
exercise of his discretion only those considerations which are relevant
and material for that purpose 24 or, as Lord Templeman explained it, the
seemingly wide power in a public authority must be tied down to the
discharge of the authoritys functions.
In Bhagwandin v Police Commissioner, it was held that previous
conviction of the applicant for selling liquor and tobacco without a
license was a material factor to be taken into account in determining a
fresh application by him for a liquor license. In other words, the

24

Padfield v Minister of Agriculture [1968] AC 997 is regarded as the locus classicus on this
point.

previous conviction, character and history of the applicant were


relevant matters for consideration.
Improper purposes
In many ways, improper purposes is mere an aspect of irrelevant
considerations and only a thin line that divided them. A classical
illustration is provided by the case of R v ILEA ex p Westminster City
Council, where the dominant of the local authority, which was to
publish information about central government, was found to be
unlawful because it sought to pursue the public rather than merely
provide the public with raw facts.
Purpose in this context refers to the intention of the statute. A
statutory power must be exercised for the purpose for which it was
intended. Accordingly, if the proper purpose of the statute is not
served, then the functionary would have acted ultra vires the statute.
Unreasonableness
In Council of Civil Service Unions v Minister for the Civil Service,
unreasonableness (or irrationality) can now be said to be firmly
establish as an independent head of administrative wrongdoing. The
Wednesbury principle established such a wide test that a decision was
said to be unreasonable only when it was so absurd that no reasonable
authority could have come to that conclusion.
Additionally, the courts made it clear that they were not willing to
categorize a decision as unreasonable merely because it was
inconvenient, unwise or unjust. In the Barbadian case of Redman v
Gaskin, the holder of a hotel licence under the Liquor License Act 1957.
The police objected on two grounds but could only sustain one ground.
namely annoyance of persons living in the area during the night.
Notwithstanding the same, the authority decided to grant a renewal of

the license with the condition that there was to be no noise nor
dancing. In an attempt by the hotelier to upset the condition, the court
held that they felt that the decision was not so unreasonable that no
reasonable authority could have come up with the decision.

Locus standi-liberal vs. restrictive approach


{Here we reason and argue by analogy and inference}
Judicial Review Must Have Locus Standi
In her quote, Professor Harlow posits that an applicant for judicial review
must have locus standi; a sufficient interest in the matter to which the
application relates. She is arguing that courts should only grant judicial
review to individuals personally affected by an administrative action, and not
just anyone with no interest who merely desire to review the legality of such
actions in the publics interest or as an interested member of the public.
She goes on to state that if no individual interest is affected (i.e. it concerns
public interest), it is not up to the judiciary but politics to provide solutions. I
disagree with her views and propose that a more liberalized stand on locus
standi regarding judicial review of administrative actions should be taken.
This paper analyzes this proposal in the context of Singapore administrative
law.
The current Singapore position on locus standi regarding judicial review of
administrative actions.

The Singapore Order 53 reads, No application for an order of mandamus,


prohibition or certiorari shall be made unless leave to make such an
application has been granted in accordance with this Rule. It does not
contain any provision defining locus standi.
The Court of Appeal in Chan Hiang Leng, Colin v Minister for Information and
the Arts (Colin) held that Singapore would not follow a higher threshold test
at the application for leave stage of Order 53, but prefers to adopt the tests
advocated by the English courts, which is exemplified in Inland Revenue
Commissioners

National

Federation

of

Self-Employed

and

Small

Businesses (IRC). Thus the test for locus standi in Singapore is one based on
sufficient interest. This indirectly means that Singapore has not adopted as
conservative a view as the Malaysian position in Government of Malaysia v
Lim Kit Siang.
However, it is unclear whether the use of the term sufficient interest in
Colin is a liberal one akin to the English Order 53, based on which publicspirited citizens have managed to obtain judicial reviews despite not having
direct interests. Chan Sek Keong CJ has remarked that In Singapore,
although the courts appear to have accepted the same sufficient interest
test to determine whether leave for judicial review should be granted, that is
not, in my view, also to say that our courts will apply the test with the same
rigour as the UK courts.
Thus, the locus standi position in Singapore appears to require at least some
form of personal interest being affected before allowing access to judicial
review of administrative actions. In other words, a civic-minded citizen does
not have standing for a judicial review regarding an action purely in the
publics interests. Public interest litigation is thus curbed.
Since the Singapore Order 53 does not define locus standi, there is
considerable flexibility for local courts to evolve these rules. Singapore
judges can choose to exercise creativity in this matter. The following sections

analyze why and how local courts should develop this area of the law
towards a much more liberalized state.

Local courts should relax the current locus standi position and allow
individuals access to judicial review for acts concerning interests wider than
that of their own (i.e. public interests) for the following reasons:
1. GOOD GOVERNANCE AND PUBLIC ADMINISTRATION
This can be achieved through
Public scrutiny
Civic-minded citizens being able to commence judicial reviews on behalf of
the public will provide a socially motivated check on administrative power,
helping to highlight administrative abuses and excesses. Knowing that their
actions might be subject to close scrutiny, public administrative bodies will
be mindful of making good decisions. In a time when much of society is
influenced by governmental departments and public authorities, such a
practice will help to improve the system of accountability and transparency
in government decision-making. This leads to good public administration,
which in turn leads to good governance. Public interest litigation has been
proven to have promoted good governance in public administration.
Publicity
Even if the judicial reviews still fail in merit, the widespread publicity usually
garnered from a citizen challenging an administrative action will still raise
national awareness regarding legality of such actions and put other citizens
on guard of possible abuses. This also improves quality of public
administration.
Judicial pronouncements

Judicial pronouncements will later represent the dos and donts in public
administration and mistakes previously made will not be repeated. Public
administration

can

be

improved

with

reference

to

such

judicial

pronouncements.
PHILOSOPHICAL GROUND. CITIZENS HAVE RIGHTS. ROLE OF INDIVIDUALS
It is submitted that it is a citizens right to help cure public misdoings. If not a
legal right, a citizen certainly has a moral right to it.
Powerful executive reigns in unwritten and written Constitutions. Cannot be
subservient to executive.
With

strong

government

based

on

the

Westminster

system

of

parliamentary democracy, the British Parliament reigns supreme as far as its


legislative powers are concerned. Singapore imported the British common
law and its parliamentary institutions and has always been governed by the
Peoples Action Party (PAP). Almost her entire unicameral Parliament is in
the hands of that party. With political patronage and controls, a powerful
party whip can quite easily keep the legislators in check. The overwhelming
majority which the government enjoys in the legislature is unsettling at times
and there exists concern that even the judiciary will not be enough to restrict
the potentially untrammeled powers of the government. It is feared that the
sacrosanct law of the land is subservient to the powerful executive which
controls the legislative powers.

It is through the pronouncements of the courts that governmental


departments are mindful of the limits and excesses of their administrative
powers. Courts must see that these great powers and influence are exercised
in accordance with law. These views were echoed by the Singapore Court of
Appeal in Chng Suan Tze v Minister of Home Affairs, Singapore & Ors. His
Royal Highness HRH Raja Azlan Shah said trenchantly: Every legal power

must have legal limits, otherwise there is dictatorshipevery discretion


cannot be free from legal restraint; where it is wrongly exercised, it becomes
the duty of the courts to intervene. The courts are the only defence of the
liberty of the subject against departmental aggression. In these days when
government departments and public authorities have such great powers and
influence, this is a most important safeguard for the ordinary citizen: so that
the courts can see that these great powers and influence are exercised in
accordance with law.
D. SUIT CHANGING TIMES/NEEDS OF SOCIETY
It is timely that our courts should relax standing rules to keep ourselves in
touch with the liberalisation that has taken place in most of the common law
jurisdictions. Some examples are:
UK
Canada
Australia
Malaysia
India
Bearing in mind that the Indian model will be unsuitable to meet our
circumstances, the other illustrations serve as useful guides in developing
our locus standi rule. A robust judicial approach to liberalise the rules of locus
standi is required as we are living in a period when administrative actions
affect every aspect of the ordinary life of the citizens.

BETTER REFLECTS DEMOCRACY.


Public participation in the deliberation of local government matters is vital if
democracy is to flourish. Judicial control over the executive who in turn has

control over the citizens is the hallmark of a vibrant democracy. As


accountability and transparency are cardinal principles of good governance,
accepting responsibility and the concept of open government are important
in a parliamentary democracy. If the courts themselves self- impose strict
standing rules in reviewing the decisions of the executive, they are shirking
from their duties as the constitutional rampart to the citizens, which
contradicts the fact that we pride ourselves as a true democracy founded on
the rule of law.
F. POLITICAL PROCESS NOT ENOUGH. REQUIRE CTS ROLE TO CHECK. (rights
still infringed)
Professor Harlows assertion that Where no individual rights are directly or
closely affected, the answer lies in the political process. is unsound. She
seems to insinuate that there exists a strict boundary between the judiciary
and the politics regarding the locus standi issue. She states that once an
individual has no interest in the issue, the matter is beyond purview of the
courts. It is pertinent to note that it is not the executive or political process
that imposed this limit on locus standi, but the courts themselves. This selfrestraint is unnecessary.
Conversely, if the political process alone cannot provide all answers, it will
cause disillusionment among citizens if law is not the solution to their
problems. Unless those dismayed individuals take this matter to court, the
public authorities will continue this course of action. It would only be right if
the judiciary extends its role to aid in filling the gap.
Thus, the boundary between the judiciary and the political process need not
be so clear-cut. As was argued by Professor Paul Craig, administrative law is
always a combination of what is going on in the political world, combined
with the reactions of the judiciary. In fact, the judiciary is a political
institution.

The position of Singapore courts is reinforced by art 93 of the Constitution


which provides that the judicial power is vested exclusively in the Supreme
Court and the Subordinate Courts in that the courts are empowered to review
of the exercise of arbitrary powers of the executive. As Professor Wade also
said: The last word on the question of legality rests with the courts and not
with the administration. When the other arms of the government may be a
let-down to the people, the judiciary must rise to the occasion to act against
any transgressions of the nations laws.

EFFICIENCY OF EXECUTIVE IN PRACTICING GOOD GOVERNANCE +


FLOODGATES ARGUMENT
It has been argued that that undue constraints imposed by the courts on the
decision-making process can impede the efficiency of public administration.
The competing tensions are between allowing too many unmeritorious
cases to be fought, which could seriously curtail the efficiency of the
Executive in practicing good governance, and allowing meritorious cases to
be

brought

to

the

courts

without

being

hindered

by

too

many

technicalities. There is also the worry of vexatious claims made only to


obstruct and delay administrative action.
With less judicial review applications to defend, the Government is, at least,
spared the need to divert resources away from its primary job of governing
the country in order to defend such actions.

However, the courts should have no difficulty in dealing with vexatious


claims. There are sufficient safeguards such actions.

In fact, relaxing the locus standi position may even serve to improve the
quality and efficiency of public administration.
Floodgates: Lastly, it must not be forgotten that even if the public interest
litigant succeeds to meet the threshold locus standi, it does not mean that
the litigant will later succeed on the merits of the case. And even if he
succeeds on the merits, it also does not mean that he is able to obtain the
remedies sought.

INFRINGE UPON SOVEREIGNTY OF PARLIAMENT. AUTONOMY OF


DECISION MAKERS
There is fear that the activities of the judiciary will even infringe the
sovereignty of Parliament. Excessive zeal might cause judges to transgress
the limits of judicial review and engage in politicized judgments, which is
evident in India. How then would the autonomy of decision-makers be
preserved?
This is obvious not the case, at least not in Singapore.
LOCAL

LIMITS

CURBING

THE

EFFECTIVENESS

OF

SUCH

LIBERALIZATION AND WHAT SHOULD BE DONE TO REMOVE


THEM
Generally Apathetic Attitude Of Citizens / Fear Of Government
The apprehension that the PAP will punish anyone who stands up to the
executive is present among citizens. Perhaps this stems from how political
opponents have been persecuted. This may frighten off public interest
litigants.

Generally, the Malaysian and Singaporean public are reluctant to take the
government and public bodies to courts. There is always this perennial fear
that the government department will punish them. They prefer to shy away
from a challenge if dissatisfied with a government decision unless provoked
by suffering grave personal injustice. To them, acceptable inconvenience is
preferable to avoid the greater trouble if the government is taken to courts.
PUBLIC LITIGATION NOT A LUCRATIVE AREA OF LEGAL PRACTICE
public interest litigation is also not a lucrative area of legal practice, and
even if there is a very public-spirited citizen who feels very strongly for a
particular cause, unless he himself is a lawyer, may not be able to engage a
lawyer or a good a lawyer to share his cause for a penny.
Resistance from the government
Naturally, the executive would probably not respond readily to relaxing the
rule on locus standi for fear that the sovereignty of their powers would be
infringed upon, and who pursuant to the doctrine of separation of powers,
believes it should govern with the least interference from the other branches
of government.
However, based on those above discussed reasons, leaders of the must not
be intolerant of dissent including any complaint against maladministration.
They must not be chary of introducing good governance to every level of
governmental administration because if it is able to permeate the entire
public administration, the problems associated with administrative corruption
and abuse will slowly fade away by themselves and die a natural death. A
good public administration brings greater respect and support for the
executive. It will also receive international acclaim for its fidelity to the rule
of law and sincerity in coming to grips with administrative injustices which
often grip poor and developing countries.

It is therefore of pivotal importance that the executive should always view


public interest litigation as a partner and not an enemy in the administration
of a good government.
If the executive is gracious enough and have the fortitude in accepting
defeats in courts as well as working hand in hand with the judiciary, in no
time an efficient public administration imbued with a high standard of good
governance will emerge.
Shift of focus in administrative practices
These views are echoed by Peter Cane that judicial interference with the
administrative process leads to the adoption of time-consuming defensive
administrative practices designed to minimise the risk that decisions will be
successfully challenged rather than to improve the quality of the decision.
CONCLUSION & RECOMMENDATIONS
The Singapore judiciary has adopted a liberal view on locus standi in Colin,
albeit the central issue was regarding constitutional supremacy. Perhaps this
implies that courts will be willing to liberalize the rule in other aspects.
Judges should exercise judicial activism regarding the rule according to
Singapores current needs, evolving it over time as situations change.
Currently, it appears that there is no pressing or urgent need to completely
liberalize the rule. And ____ This is because the system of public
administration in Singapore has been given due recognition globally. There is
also not much room for any misfeasance by such officers without being
noticed or reported to their superiors. Singapores civil service is recruited
from the brightest and the best of society based on merit.
But the liberalisation process has to start nevertheless to allow it to evolve
through the natural course of events. A continued and sustainable public
administration is vital for Singapore to survive as a major financial centre in

the region. As discussed, there are strong reasons for such liberalization, and
any potential arguments or limitations against it are either unfounded or
inconsequential. The time has come for local courts to exercise their
creativity regarding the locus standi position. After all, truth fears no trial.

NB. This lecture is not intended to be exhaustive on Judicial Review, but merely an
outline the applicable areas for assessment.