UNIT SEVEN: JUDICAL REVIEW

Introduction

As was stated earlier, judicial control of administrative agencies is one of the effective

mechanisms for ensuring rule of law and improving the quality of decision-making in

the administration. The judiciary, being the guardian and the ultimate arbiter of

justice, can intervene to test the legality of administrative decisions either in its

appellate or reviewing capacity. Thus, understanding the basic similarities and

differences of these two important powers of the court will be given due consideration

in this chapter. Particularly, this chapter tries to introduce you with the notion, the

grounds, the scope and limitation of judicial review. Needless to say, courts do not

have an outright power to monitor every administrative activity. The court’s

supervisory powers on administrative matters should be squared with the fundamental

constitutional principle of separation of governmental powers among the three state

organs. Having regard to this fundamental principle, courts are expected to play their

supervisory roles only based on the accepted grounds. So, the rich experiences of

some foreign jurisdictions in relation to judicial review will be given due attention

during the course of the discussion in this unit.

Objectives:

At the end of this unit students are expected to:

Understand the meaning of judicial review

Differentiate been judicial review from merits review

Identify the basis of judicial review power of courts

Determine the proper scope of judicial review

Identify the grounds in which courts may intervene in reviewing

administrative action.

Define and analyze ultra virus acts and abuse of power as grounds of judicial

review.

Distinguish been ultra virus act from jurisdictional error.

Identify reviewable and justiciable matters under judicial review

Identify procedural requirements for judicial review

Define and understand the concepts of ripeness, exhaustion of remedies, and

finality clause

Analyze how the above concepts affect the availability of judicial review

7.1 The Meaning and Nature of Judicial Review

The term ‘judicial review’ has different meaning and scope in different

jurisdictions. For example, in the United States, judicial review refers to the power

of a court to review the actions of public sector bodies in terms of their lawfulness,

or to review the constitutionality of a statute or treaty, or to review an administrative

regulation for consistency with a statute, a treaty, or the Constitution itself.

(http://www.en.wikpidedia.org/wiki/Judicial_review_in the_United_States.)

Broadly speaking, the term judicial review may have the following two meanings:

“Higher court’s review of a lower court’s (or an administrative body’s) factual or

legal findings” or “Supreme Court’s power to decide whether a law enacted by the

legislature is constitutional or not.”

(http:/www.businessdictionary.com/definition/judicial-review.html accessed on 20

June 2008)

But in the United Kingdom’s context, the term judicial review refers to the power

of the judiciary to supervise the activities of governmental bodies on the basis of

rules and principles of public law that define the grounds of judicial review. It is

concerned with the power of judges to check and control the activities and decisions

of governmental bodies, tribunals, inferior courts…. (Cumper, P.291.) Judicial

review is a procedure in English Administrative Law by which English courts

supervise the exercise of public power. A person who feels that an exercise of such

power by, say, a government minister, the local council or a statutory tribunal, is

unlawful, perhaps because it has violated his or her rights, may apply to the

Administrative Court (a division of the High Court) for judicial review of the

decision … Unlike the United States and some other jurisdictions, English law does

not know judicial review of primary legislation (laws passed by Parliament), save in

limited circumstances where primary legislation is contrary to the EU law

Although the Courts can review primary legislation to determine its compatibility

with the Human Rights Act 1998, they have no power to quash or suspend the

operation of an enactment which is found to be incompatible with the European

Convention of Human Rights- they can merely declare that they have found the

enactment to be incompatible. (http://en.wikipedia.org/wiki/Judicial-review) The

principle of Parliamentary supremacy in the UK implies that the Parliament can

legislate on any matter. Thus, the principle of Parliamentary supremacy in the UK

dictates that the judiciary cannot review a law enacted by the Parliament.

However, appreciating the differences concerning the meaning of judicial review

among jurisdictions, for the purpose of this discussion, the term judicial review is

taken in its narrow sense: it meant the power of the court to supervise/ control the

legality of the powers of administrative agencies. Judicial review is the exercise of

the court’s inherent power to determine whether an agency’s action is lawful or not

and to award suitable relief. Judicial review is a fundamental mechanism for

keeping public authorities within due bounds and for upholding the rule of law

(Wade & Forsyth, PP. 33-34) The primary purpose of judicial review is to keep

government authorities within the bounds of their power.

7.2. Judicial review Vs. Merits Review

In terms of purpose and scope, merits review of an agency’s decision is different from

judicial review (technical review). As was stated somewhere else, the purpose of

merits review action is to decide whether the decision which is being challenged was

the ‘correct and preferable’ decision. If not, the reviewing body can overrule such

decision and substitute it with a new decision it deems ‘correct and preferable’ under

the given circumstance. The issue in merits review is to test whether decision

complained is ‘right or wrong’. The process of merits review will typically involve a

review of all the facts that support a decision. Merits review is said to be the sole

responsibility of the executive, because the person or tribunal conducting the review

‘stands in the shoes” of the original administrative decision maker. Administrative

tribunals are not bound by strict rules of evidence and seek to provide a less formal

atmosphere than the courts. If the reviewing body would make a different decision, then that
decision will be substituted for the original decision. As practices of

different countries indicate, the power to conduct merits review of an agency’s

decision may be conferred to a court (in the form of appeal), a special tribunal, or a

general administrative tribunal

Whereas, judicial review is a technical review; while reviewing an agency’s decision,

the court is concerned with the legality or illegality of the decision under review. If

the court finds out the decision is legal, it will not do anything on it even if the

decision deems incorrect in terms of preference. But if the court finds out the decision

against which review is sought is illegal or ultra vires, it can set it aside and order the

concerned agency to reconsider the decision based on the directions of the court. The

reviewing court does not substitute its own new decision in place of an agency’s

invalidated decision on account of illegality. In one case, the phrase judicial review

was described in the follows terms:

The duty and jurisdiction of the court to review administrative action do not go

beyond the declaration and enforcing of the law which determines the limits and

governs the exercise of the repository’s power. If, in so doing, the court avoids

administrative error or injustice, so be it; but the court has no jurisdiction simply to

cure administrative injustice or error. The merits of administrative action to the

extent that they can be distinguished from legality, are for the repository of the

relevant power and, subject to political control, for the repository alone ((AttorneyGeneral (NSW) v
Quin (1990) 170 CLR at 35-36 per Brenan J.))

The fundamental principle of judicial review is that “all power has its limits,” and

when administrative decision-makers act outside of those limits, they may be

restrained by the judiciary. Judicial review does not prevent wrong decisions; it,

instead, prevents them from being made unjustly. It does not matter whether the judge

who is reviewing the decision would himself or herself has arrived at a different

conclusion to the administrative decision-maker. The decision will only be interfered

if there was some illegality in the process by which it was made. The jurisdiction of

the court is confined to quashing the decision and remitting the matter back to the

original decision-maker for determination in accordance with the law. This may not

always be satisfying- either for individual judges or for the party seeking relief- but it is often
unfairness in the making of a decision, rather than the decision itself, that

causes people the greatest distress (Justice Peter McClellan, p.4)

Unlike merits review which is statutory in origin, the source of judicial power is not

statute; statutory authority is not necessary the court is simply performing its ordinary

functions in order to enforce the law. The basis of judicial review, therefore, is
common law (Wade & Forsyth, P.34) However, it has to be noted here that, although

a statutory empowerment may not be necessary to exercise judicial review, this power

can be taken away from the court by a statute. For example, in French,

regular/ordinary courts have no supervisory power over the activities of government

agencies. That is, regular courts cannot claim inherent power of judicial review to

challenge administrative acts. This is the mandate of the French administrative

tribunals that are established outside the structure of the ordinary courts. There are

also countries that confer statutory judicial review power to ordinary courts in order to

supervise and ensure legality in administrative decision-making.

7.3 The Bases of the Power of Courts to Supervise Administrative

Action

7.3.1. In General

Concerning the basis or the sources of the power of ordinary courts to supervise

(review) administrative actions, there is no single universally applicable formula that

is accepted by all jurisdictions. As indicated above, some authorities state that judicial

review is the exercise of the court’s inherent power to determine whether an action is

lawful or not. According to these authorities, since the basis of judicial review is

common law, no statutory authority is necessary: the court is simply performing its

ordinary functions in order to enforce the law (Wade & Forsyth, P.34). But the

practices in some other countries indicate that statutes may empower ordinary courts

to review administrative acts based on defined criteria thereof. For example,

Australia, appreciating the arcane and complications of the common law practice and

procedures relating to judicial review, codified the principles of judicial review;

reform the procedures for commencing a judicial review proceeding; confer

supervisory jurisdiction upon a specialist Federal Court. These criteria are clearly provided under
section 5 of the Administrative Decisions (Judicial Review) Act 1977

(‘AD (JR) Act’. The practice in Australia indicates that judicial review of

administrative decisions is possible by other methods besides the AD (JR) Act, such

as review by the High Court in its original jurisdiction conferred by section 75(v) of

the Constitution, and review by the Federal Court under section 39B of the Judiciary

Act 1903.
The system of judicial remedies is derived from two main sources. First, there is a

group of statutes which establishes an agency and incorporates provisions for the

review of its actions. Second, there is a branch of remedies which has been developed

by the combined action of the common law and statutes consolidating, simplifying, or

in some other ways reforming the common law remedies. These remedies are

certiorari, mandamus, prohibition, habeas corpus, quo warranto (the so- called

prerogative writs), damages suits, bill in equity, and defense to enforcement

proceedings. To them, modern statutes have added the declaratory judgment

procedure. These remedies are available where no specific review has been provided,

or where the specific review provisions have been drafted in such a way as to make

them unavailable for the review of certain decisions of the agency.

No two of these systems are identical. The same administrative action may be

controlled in one state by a specific statutory provision, in another by certiorari, in

another by mandamus, in a fourth by injunction, and in a fifth it may be doubtful

whether it is subject to control at all. Assuming the availability of any relief, the

remedies may be both complementary and supplementary. If certiorari is not

available, mandamus may be, and if neither, the proper remedy may be injunction;

and different questions relating to the same proceeding may have to be tested by

different means. Nevertheless, all of the systems are based on the system developed

by English judges and parliaments. (Jaffee From Administrative Action, pp. 152-

196)

The English judges were the King’s judges. As such they exercised his supreme

plenary power of judicator. The King’s Bench issued writs, the so-called prerogative

writs, to all the inferior officers. The writ ordered the officer to demonstrate the

legality of this order or determination. The King’s courts also allowed actions for damages against an
officer who by exceeding his powers had injured the plaintiff. The

theory was that public officers were subject to “the law” as were the private citizens,

i.e., they were answerable in the regular courts of law. It was this latter phenomenon

of damage suit which came to characterize the “rule of law,’ though it is one aspectand not the most
impeared to exclude it. (Jaffee, pp. 152-196).

As can be inferred from the remarks made above, the basis of the power of the court

to supervise (review) administrative decisions is either common law, or statute, or

both as the case may be. However, the assertion that judicial review is the inherent

power of the regular/ordinary courts may not always stand valid, as there are

jurisdictions that do not allow judicial review of administrative decisions by regular

courts at all. The French and other continental systems, for example, which follow the

extreme version of separation of power doctrine, take away from the regular court the

power of judicial review of administrative decisions; they have a system of

administrative courts - the administrative counter part of regular courts within the

administration is established to perform judicial function on administrative matters.

But this does not mean that there is no judicial review in France and other continental

law countries. It is to mean that this power is exercised by administrative courts not

by regular courts, like in many common law jurisdictions.

In the United States, there is a different position. The US Federal Supreme court, as it

is well known, not only has the power to review administrative decisions and

subordinate legislations like in the case of United Kingdom, but also has the

constitutionality of any act be it a parliamentary legislation or any act of the

government administration. The US Supreme Court can render a primary legislation

invalid on constitutionality ground. One may wonder concerning the source of this

broad power of the court. There is no comparable common law practice expressly

stated anywhere in the US Constitution. In a landmark case, Marbury v. Madison, the

basis for the exercise of judicial review in the United States, is said to be an

interpretation of the Constitution as applying to the law and policies of the

government. This implies that the power of federal courts to consider or overturn any

congressional and state legislation or other official governmental action is deemed

inconsistent with the Constitution, Bill of Rights, or federal law. The two important Articles
incorporated under the US Constitution proponents of the

doctrine often quoted are Article III and Article Six of the Constitution. In Article III,

the Constitution says:

The judicial power of the United States shall be vested in one Supreme

Court and in such inferior Courts as the Congress may from time to time

ordain and establish… The judicial power shall extend to all Cases, in

Law and Equity, arising under this Constitution…

Article Six of the US Constitution also dictates, “This Constitution and the Laws of

the United States which shall be made in pursuance thereof…shall be the supreme

Law of the Land…” From the wordings of this provision of the Constitution,

proponents of the doctrine inferred the laws of the United States which are not in

pursuance to the Constitution are not the supreme law of the land. So, even though

nowhere the constitution explicitly authorizes the Supreme Court to challenge acts of

congress on constitutional ground, by the cross reading of the two Articles mentioned

above, the US Supreme Court maintained the power to interpret the Constitution.

To extend similar argument to other administrative matters, the federal and state

courts in the United States exercise supervisory (judicial review) power over

administrative decisions and subordinate legislations. In this regard, courts can test

the legality of the decision or administrative act in question against the Parent Act, or

they can question even the legality of the Parent Act and decisions passed under its

cover against the Constitution.

7.3.2 In Ethiopia

Coming back to the status of judicial review in Ethiopia, there is no clearly defined

jurisprudence on the evolution and status of the judicial review. Judicial review of

administrative decision dwells inthe fundamental principle of separation of power

among the three conventional organs of the state: the legislature, the judiciary and the

executive. Judicial review could be meaningful only when judicial power is

ultimately vested in the judiciary and when the principle of rule of law reigns. Thus, a

brief discussion of the evolution of the separation of power and the rule of law in

Ethiopia is of great help in understanding the status of judicial review in historical

perspective. During the Imperial regime, the principle of separation of power was absent. The

1931 Constitution conferred to the Emperor uncontested and boundless executive,

legislative and judicial power. In this regard, an authority named Scholler cited an

important remark made by a famous Ethiopian writer, Mahtama Slassie, concerning

the power of the Emperor as follows:

The Ethiopian Emperor has an uncontested and boundless power over

the territory he rules. He is both the temporal and spiritual ruler. With

the supreme sovereignty vested in him, he appoints or dismisses

government officials, he gives gifts or refuses to give them, he

imprisons or releases, he sentences criminals to death or punishes

them, and does many other things of similar nature. (Scholler, p.35)

During the Imperial regime, the Emperor was the head of state and the government,

the fountain of justice and equity, the supreme law giver. Emperor Haile Selassie I

continued with this omnipotent power until he was demised by the military revolution

of 1974. In short, the Emperor, during the period under discussion, was above the

law. He was immune from any judicial procedure. Thus, the general opinion is that

since ultimate judicial power was dwelling in the hands of the Emperor and the

Emperor himself he was above the law of the empire. Thus, it would be nonsense to

say that there was a meaningful room for judicial review during the Imperial regime

of Ethiopia. Although the 1955 Revised Constitution of the Imperial Ethiopia, which

was modelled under the U.S. Constitution, formally recognized the concept of judicial

reviews. Since ultimate judicial power remained in the hands of the Emperor intact, it

could not have practical meaning as such.

Following the downfall of the Monarchical regime by force in the 1974 the

Provisional Military Administrative Council (PMAC) commonly known by the

Amharic word ‘Derg’ overtook the political power. The Derg suspended the

application of the 1955 Revised Constitution and ruled the country for almost thirteen

years without having a constitution. After forming the Worker’s Party of Ethiopia

(WPE) in 1984, which was the only party with the political power, the Constitution of

the People’s Democratic Republic of Ethiopia (PDRE) was adopted in 1987. Article

62 of the Constitution vested supreme legislative power in the National Shango

(assembly). The PDRE Constitution, as stated under Chapter XIV of the same, vested judicial power in
courts that were established by law. The highest judicial organ was

the Supreme Court. It had the authority to supervise the judicial functions of all courts

in the country.

An important question that may be raised here is that whether or not the principle of

separation of state power was duly recognized under the PDRE Constitution. In

addition to the discussion made above, having a brief look to the power of the

executive organ of the PDRE government has paramount importance in answering

this question. Chapter XI of the PDRE, Constitution outlined the powers and duties of

the President. Accordingly, the President who was to be elected by the National

Shango was the head of the state, representative of the Republic at home and abroad

and was the Commander-in-Chief of the Armed Forces. He had vast power to

supervise the activities of the various organs of the government. Article 86( c) and ( e)

of the Constitution, for instance, state that the President has the power, among other

things, to ensure that the Council of Ministers, the Supreme Court, the Procurator

General… carry out their responsibilities. The president had also the power to

nominate the President and the Vice-President of the Supreme Curt for approval by

the National Shango, and when compelling circumstances warrant it, he can between

the sessions of the National Shango appoint and dismiss the same. The President had

a wide opportunity to abuse his power since the National Shango was required to meet

once a year unless emergency necessitates the calling of extra ordinary meeting.

Although the Constitution required that the judges of the Supreme Court were to be

elected and dismissed by the National Shango, since the Shango was in recess through

out the year, the President had the opportunity to exercise his power in disguise.

The President and the Vice President of the PDRE were also the President and the

Vice President of the Council of State, respectively. As stated under Article 82 of the

PDRE Constitution, the Council of State had the power and duty to ensure the

implementation of the Constitution and other laws, to interpret the Constitution and

other laws, to revoke regulations and directives which do not conform to the

Constitution Interpretation of laws during the Derg period was done not only by

courts; state organs such as the National Shango, the Council of State and the General

Procurator were also entrusted with such power. From the facts provided above, one can
understand that the PDRE Constitution not

only vested supreme executive power in the hands of the Council of State, which was

under the presidency of the PDRE President, but also judicial power such as

interpretation of the Constitution and other laws as well as revocation of laws that

contravene the constitution. Were also under the plisenderry of the PDRE President.It

is also possible to say that the judiciary did not have administrative independency as

the PDRE Constitution made the Supreme Court directly accountable to the President.
Here is the paradox; he/she was the Chief-Executive and Head of the PDRE, the

President whom the Constitution empowered to supervise the Supreme Court Judges

in effect rendered judicial review non-existence during the Derg regime.

The Constitution of the Federal Democratic Republic of Ethiopia (FDRE) vested

judicial powers both at federal and state levels in the courts. This is expressly stated

under Article 79(1) of the Constitution. Thus, one may safely say that supreme

judicial power under the FDRE is vested in the Judiciary. Being a final arbiter of the

law, the judiciary can review and annul administrative decisions on grounds of

legality. However, Ethiopian courts did not have the power to interpret the

Constitution. This power was explicitly given to the House of the Federation in

Article 62(1) of the FDRE Constitution. But this should not be construed to mean that

courts could not invalidate an administrative decision or other subordinate legislation

that contravened the clear words of the Constitution (in circumstances where there is

no need for interpretation), provided that they have the very power of judicial review.

So, an important question that should be raised here is that: Do Ethiopian courts have

the power of judicial review? As was mentioned above, in some foreign jurisdictions

like France, regular courts are prohibited from reviewing administrative decisions;

France has full-fledged administrative tribunal systems that are established to resolve

disputes on administrative matters in accordance with the principles and standards of

administrative law. But, there is no such kind of institutional arrangement in Ethiopia,

although technically speaking it seems possible. As can be inferred from Articles

37(1) and 78(4) of the FDRE Constitution, despite the existence of Article 79(1) of

the same, judicial power is not exclusively vested in regular courts. Other bodies such

as administrative courts can be established to assume judicial power on administrative

matters. Thus, it may not be labeled unconstitutional if Ethiopia adopts the French type model
provided that it is preferable in terms of relevancy and feasibility having

regard to the specific situations of the country.

However, having regard to the existing situation in Ethiopia, that is the absence of

full-fledged administrative court system like the French counter part, it seems

justifiable to argue that regular courts must have the power to test the legality of
administrative decisions in the same manner as courts in the common law tradition do.

The power of the court to review administrative decisions, thus, may be derived from

the very principle of separation of power that vests judicial power in the judiciary and

the doctrine of rule of law enshrined under the FDRE Constitution by way of

interpretation just like the practice in the United States, at least, for the purpose of

reviewing administrative decisions and subordinate legislations. There are also

possibilities where the parent acts that create the respective agencies may also

empower courts to review administrative decisions under specified conditions. Thus,

one may plausibly argue that implied in the principles of separation of state power and

the rule of law that are duly recognized under the FDRE Constitution is that the

judiciary as the ultimate arbiter of justice has the power to test the legality of

administrative acts. In the absence of a systematically devised administrative

reviewing mechanism like that of the French one, precluding the ordinary courts to

review administrative acts on technical grounds renders the doctrine of rule of law

meaningless. However, practically speaking, the status of judicial review in Ethiopia

lacks clear-cut jurisprudential evidence.

Wherever courts have the power to review administrative actions or inactions that

tantamount to decisions, the prerequisites that they are expected to observe are

discussed subsequently.

7.4 Grounds of Judicial Review

Needless to say that courts do not have an unlimited power to supervise the activities

of administrative agencies. The principle of separation of powers dictates the various

organs of the government to act within the scope of their respective sphere of powers

and refrain from interfering on matters that are exclusively entrusted to others. So, judicial review
does not authorize the court an outright power to interfere on

administrative matters. The rational behind the need for the determination of the

justifiable grounds of judicial review is, thus, to delineate the boundary where judicial

review may be available to challenge administrative decisions.

As was clearly stated in the foregoing sub-section, the purpose of judicial review is to

test the lawfulness of government’s decisions. Worth discussing point for this subsection is,
therefore, related to the determination of the grounds that may render an

administrative decision unlawful/illegal. In order to delineate the boundaries in which

judicial review may be called into operation, different jurisdictions crafted their own

standards or criteria that may render administrative decisions unlawful or illegal.

Australia can be taken as a good example in this regard. In Australia, an

administrative decision is said to be unlawful if it breaks one of the criteria that are

defined in section 5 of the Administrative Decision (Judicial Review) Act 1977 (‘AD

(JR) Act’). The grounds of judicial review as outlined in section 5 of the AD (JR)

include the following:

A breach of the rules of natural justice;

A failure to observe the procedures that were required by law to be observed

in connection with the making of the decision;

The person who purported to make the decision did not have jurisdiction to

make the decision;

The decision was not authorized by the enactment in pursuance of which it

was purported to be made and

The making of the decision was an improper exercise of the power conferred

by the enactment in pursuance of which it was purported to be made. An

exercise of power may be improper if the relevant conduct involves:

Taking an irrelevant consideration into account in the exercise of a

power;

Failing to take a relevant consideration into account in the exercise of

a power;

An exercise of a power for a purpose other than a purpose for which

the power is conferred;

An exercise of a discretionary power in bad faith; An exercise of a personal discretionary power

at the direction or

behest of another person;

An exercise of a discretionary power in accordance with a rule or

policy without regard to the merits of the particular case;

An exercise of a power that is so unreasonable that no reasonable

person could have so exercise the power;

An exercise of a power in such a way that the result of the exercise of

the power is uncertain; and

Any other exercise of power in a way that constitutes abuse of the

power;

An error of law;

The decision was induced or affected by fraud;

There was no evidence or other material to justify the making of the

decision, but only if:

The person who made the decision was required by law to reach that

decision only if a particular matter was established, and there was no evidence or

other material (including facts of which he or she was entitled to take notice) from

which he or she could reasonably be satisfied that the matter was established; or

The person who made the decision based on the decision on the

existence of a particular fact, and that fact did not exist and

The decision was otherwise contrary to law.

The grounds of judicial review incorporated under the Australian Administrative

Decision (Judicial Review), as listed above, have predominantly common law origin.

But some of them are refined and reformed in a manner that fits the Australian

situation. It does not mean, however, that these criteria are not used in the continental

law world as grounds for reviewing administrative decisions. In France, for example,

many of these criteria are receiving blessing as bases for reviewing administrative

decisions by administrative tribunals. Having this general information in mind, it

seems important to proceed with the details under the subsequent sub-sections. 7.4.1 Simple
(Narrow) Ultra Vires

The simple proposition that a public authority may not act out side its powers (ultra

vires) might fitly be called the central principle of administrative law. The juristic

basis of judicial review is the doctrine of ultra vires (Wade & Forsyth, p.35). In its

reviewing capacity the court is essentially looking at whether a decision- making body

has acted ‘ultra vires’or ‘intra vires’. The term ‘ultra vires’ means ‘without power’,

while ‘intra vires’ means ‘within power.’ If a decision-making body acts ultra vires

the reviewing court has the discretion to intervene (Cumper, p.291.), From the

opinions of the authorities cited above, one can infer that the term ultra vires in
administrative law context refers to decisions passed by administrative authorities

without having the requisite power or in excess of the limits of the power conferred

upon them. An administrative decision may be rendered ultra vires due to substantive

or procedural issues affecting the decision.

7.4.1.1 Substantive Ultra Vires

The term substantive ultra vires refers to the substantive defects of the decision as

contrasted to the procedural irregularities. In the strictest sense of the term, an

administrative decision is said to be ultra vires in terms of substance where the

decision maker exceeds the power duly entrusted to him/her in the public interests or

where the subject matter of the decision falls outside the jurisdictional limit of the

decision-maker. This goes in line with the principle that says each power has its own

legal limits. Thus, where the decision maker passes decisions on matters falling

outside the boundary of his statutory powers, there comes what we call substantive

ultra vires in the narrow sense of the term. The underlining principle behind

substantive ultra vires is that every power entrusted in the public interest has its own

limits. So, when the decision-maker renders a decision that exceeds the power

conferred upon him, it can be attacked through the forum of judicial review. 7.4.1.2 Procedural Ultra
Vires

Even if the decision-maker passes a decision within the scope of the statutory power

conferred upon him, still the decision may be rendered ultra vire because of

procedural irregularities affecting the decision. The phrase procedural ultra vires

refers to a decision passed disregarding mandatory (formal) procedural requirements.

Procedural requirements could be obligatory (need strict compliance) or directory

(provide direction to the decision-maker to be followed in at the discretion of the

decision-maker in appropriate cases). Where there is a statutory procedure that

dictates a course of an administrative action to be taken based on the established

mandatory formal requirements, non observance of these requirements rendered the

decision procedurally refers to ultra vires.

Procedural illegalities, also known in the broader sense as procedural improprieties

applly not only to non-observance of mandatory statutory procedural requirements,

but also to situations where the decision-maker fails to observe the rules of natural
justice or fail to act fairly. See section 4.2.1 of this material in order to appreciate the

rules of natural justice and fair hearing.

7.4.1.3 Jurisdictional Error

As a general rule, errors of fact made by the primary decision-maker are not to be

corrected by a court. They are accepted as errors within the jurisdiction of the

administrative decision-maker, and as such he or she is entitled to make them. Factual

issues are typically issues that go to the merits of a decision, not to its legality.

Jurisdictional facts are different. Whether or not a decision-maker does or does not

have jurisdiction to make, a decision is a question of law and open to judicial review.

(McClellan, p.7) A decision-maker who erroneously interpreted the law as providing

a power that did not exist was said to have made a ‘jurisdictional error of law’. An

error of fact can also be challenged if the error is jurisdictional. A jurisdictional error

of fact occurs where the existence of a particular state of affairs is a condition

precedent to a decision-maker actually having jurisdiction, (Cumper, pp. 302-303). As can be inferred
from the above-cited opinions, jurisdictional error results where

the decision maker assumes jurisdiction over a subject matter either due to the wrong

interpretation of the law or the wrong appreciation of facts that are essential

conditions precedent for assuming jurisdiction over a subject matter. Jurisdictional

error of law arises when, due to the wrong interpretation of the law, the decision

maker exercises a power over a subject matter that actually did not fall under his

jurisdiction. But jurisdictional error of fact happens while the decision-maker assumes

jurisdiction over a subject matter in the absence of a certain fact that is set as a

condition precedent to assume such jurisdiction. In short, jurisdictional error is one of

the species of ultra vires that may give rise to judicial review.

7.4.1.4 Error of Law

As was discussed somewhere else, judicial review is concerned with testing the

legality of the administrative decisions. This means that courts are more expertise to

review errors of law than errors of fact. Broadly speaking, errors of law can be

classified into ‘errors going to jurisdiction’ (jurisdictional errors of law) and errors of

law ‘within jurisdiction’. According to Cumper, prior to the case Anisminic Ltd v

Foreign Compensation Commission [1969] 2 AC 14, there was an important

distinction between errors of law ‘going to jurisdiction’ (jurisdictional errors of law)

and errors of law ‘within jurisdiction’ (errors of law on the face of the record). As

was stated in the preceding sub-section, jurisdictional error of law refers to a decision

made without power (ultra vires) due to the wrong interpretation of the law. But an

error of law ‘within the jurisdiction’ is the type of error made by a decision-maker

who errs in law whilst exercising powers which have been conferred on him/her. This

type of error will not automatically render the decision ultra vires. The courts have

discretion to intervene if the error of law appeared on the record of the decision.

However, in Anisminic Ltd v foreign compensation, the House of Lords decision

renders the distinction unnecessary in most cases. Their lordship decided that errors of

law could be treated as going to jurisdiction, even when there had been an error made

in the process of exercising power conferred, rather than an error in deciding whether

the power had actually existed. According to Cumper, following the decision in Anisminic case, the
distinction

between errors of law on the face of the record and jurisdictional errors of law is

probably rendered obsolete. However, the House of Lords in this case did leave open

the possibility of a decision-maker making an error of law within jurisdiction. As

mentioned above, judicial review may be available where a body is acting within its

powers but has erred in law whilst doing so and that error appears on the record

relating to the decision. Cumper cited an important case related to the error of law on

the face of the record as follows:

In R v Northumberland Compensation Appeal Tribunal, ex parte shaw

[1952] 1 KB 388, a statute provided that all hospital employees who

had been made redundant should be paid compensation. The amount

of compensation was to be calculated not merely on the basis of the

length of service in a particular hospital, but it was also to include

periods of employment in any other local government service. The

amount of compensation awarded by the Appeal Tribunal in this case

reflected only the period of employment in the hospital and ignored

previous service in other local government departments. The basis of

the calculation was included on the record of the tribunal’s decision.

The decision was therefore quashed. (Id., pp.302-303)

7.4.1.5 Failure to Discharge Statutory Duty

The grounds of judicial review are not limited to ultra vires acts in the positive sense.

An agency’s failure to discharge a statutory duty towards the designated beneficiaries

can also give rise to judicial review. For example, in the area of pension and social

security, where the concerned organ of the government persistently fails to provide

the benefit to the statutorily designated beneficiaries, the latter can invoke judicial

review seeking mandamus (compelling court order). That is, an authority’s

forbearance to discharge a statutory duty towards the beneficiaries without any strong

reason can give rise to judicial review. The remedy that may be granted by the

reviewing court in this case will be discussed in the last chapter.

7.4.2 Abuse of Power (Broad Ultra Vires)

For the purpose of judicial review, an ultra vires act can be liberally construed to

include not only those decisions of an authority that are rendered with no power, in

excess of power, or contrary to mandatory statutory procedural requirements such as

discussed above; but it may also include those administrative decisions, although fall

within the wide discretionary power of the decision-maker, may be found to be

defective on the grounds of manifest unreasonableness, disproportionality,

irrationality and other grounds that shall be appreciated in the subsequent sub-sections

in turn.

7.4.2.1 Unreasonableness

Although there are critics labeled against conferring discretionary powers to

administrative agencies for fear that such agencies may abuse such unrestrained

powers, still it remains the hallmark in the science of administration. As Cane pointed

out, discretion is a feature not only of a policy decision but also of decisions on

questions of fact and law, which often have no ‘right answer’ but more than one

‘reasonable answer’ from which the decision-maker must choose. Discretion, as to

procedure to be followed in making a decision, can also have an important impact on

the decision itself, (Cane, p.133). Drawing a sharp contrast between discretion and

‘duty’, Cane further noted on the ways discretionary powers may be limited as

follows:
The essence of discretion is choice; the antithesis of discretion is duty.

The idea of ‘decision-making’ implies an element of choice: duty does

away with the need to make decisions. Duty removes discretion; but

discretion may also be limited without being entirely removed, by

standards or guidelines or criteria which the decision-maker is to take

into account in exercising discretion. (Id. Pp.133-134)

The very concept of administrative discretion involves a right to choose between more

than one possible course of action upon which there is room for reasonable people to

hold different opinions as to which is to be preferred, (Lor Diplock cited in Wade and

Forsyth, 365.) As expounded by the 19th centaury jurist Dicey, discretionary power should be
controlled: uncontrolled (absolute) discretion is an evil to be avoided in

most contexts. But according to Cane, discretion has both advantages and

disadvantages and the purpose of controlling discretion should be to preserve the

advantages to the greatest degree consistent with minimizing the disadvantages.

Discretion has the advantage of flexibility; it allows the merits of individual cases to

be taken into account. Discretion is concerned with the spirit, not the letter of the law,

and it may allow government policies to be more effectively implemented by giving

administrators freedom to adapt their methods of working in the light of experience. It

is useful, in new areas of government activity as it enables administrators, to deal with

novel and, perhaps, unforeseen circumstances as they arise. On the other hand,

discretion puts the citizen in much more at the mercy of the administrator, especially

if the latter is not required to tell the citizen the reason why the discretion was

exercised in the particular way it was. Discretion also opens the way for inconsistent

decisions, and demands a much higher level of care and attention on the part of the

administrator exercising it (Ibid. P.135)

Discretion may be structured by providing that it should be exercised ‘reasonably’

–this gives the decision-maker a degree of freedom because people may fairly

disagree about what is reasonable, but it rules out certain results as unacceptable.

(Id.) Despite the difficulties to demarcate the line between reasonable decision and

its antithesis- unreasonable, there is a consensus in the common law world that

when a decision-maker reaches a decision that no reasonable person would have

made, it can be well taken as a ground for judicial review. In R v Greenwich

London Borough Council, ex parte Cedar Holdings [1983] RA 17 it was held that

a decision is unreasonable if it is the kind of decision that is so outrageous that no

right thinking person would support it.

In Wednesbury case, a case involving a decision to deny access to a movie theatre

to youngsters on Sunday, presumably to preserve their moral health, in refusing to

interfere with the decision, Lord Greene MR noted that there was considerable

overlap between many of the grounds of review that fell within the rubric of

“unreasonableness.” In words which have been repeated by countless judges on

many occasions his Lordship said: It is true that the discretion must be exercised reasonably. Now
what

does that mean? Lawyers familiar with the phraseology commonly

used in relation to exercise of statutory discretions often use the word

‘unreasonable’ in a rather comprehensive sense. It has frequently been

used and is frequently used as a general description of the things that

must not be done. For instance, a person entrusted with discretion

must, so to speak, direct himself properly in law. He must call his own

attention to the matters which he is bound to consider. He must

exclude from his consideration matters which are irrelevant to what he

has to consider. If he does not obey those rules, he may truly be said,

and often is said, to be acting ‘unreasonably.’ Similarly, there may be

something so absurd, that no sensible person could ever dream that it

lay within the power of the authority. Warrington LJ in Short v Poole

Corporation [1926] Ch 66 at 90,91 gave the example of the red-haired

teacher dismissed because she had red hair. That is unreasonable in

one sense. In another sense it is taking into consideration an

extraneous matter. It is so unreasonable that it may be described as

being done in bad faith; and, in fact, all these things run into one

another. (Associated Provincial Picture Houses Ltd v Wednesbury

Corporation [1948] 1 KB 223 p. 229)

This ground came to be known as Wednesbury unreasonableness. It is important

to emphasis Lord Green’s words that state “something so absurd that no sensible

person could ever dream that it lay within the power of the authority.” Lord Green

stated further: “It is true to say that, if a decision on a competent matter is so

unreasonable that no reasonable authority could ever have come to it, then the

courts can interfere. That, is quite right; but to prove a case of that kind would

require something overwhelming…” (Id. P.230)

In the effort to delineate the border between legality and merits, McClellan quoted

the opinion of courts from different cases as follows:

Courts have repeatedly emphasized that the “unreasonableness” ground

“must not be allowed to open the gate to judicial review of the merits of a

decision or action taken within power.” Minister for Urban Affairs and Planning v Rosemount Estates
Pty Ltd (1996) 91 LGERA 31 at 42.) The

requirement of “something overwhelming” has by and large been taken

seriously by judicial decision-makers, so that a decision cannot be interfered

with unless it is so unreasonable that it is “obvious” that the decision-maker

“is acting perversely,” (Puhlhofer v Hillingdon London Borough Council

[1986] AC 484 at 518.) or it is so unreasonable that the decision is one “for

which no logical basis can be discerned” (Minister for Immigration and

Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626.) or one that

“amount[s] to an abuse of power.” (Attorney-General v Quin (1990) 170 CLR

1 at 36.)…

An authority has listed the following other types of cases where administrative

decisions have been set aside for Wednesbury unreasonableness:

Where a decision is devoid of plausible justification.

Where a decision-maker has made an erroneous finding of fact on a point

that is fundamentally important in the case.

Where the decision-maker has failed to have regard to departmental policy

or representation.

Where the effect of the decision is unnecessarily harsh.

When the decision-maker has failed to give genuine, proper or realistic

consideration to a matter. (Beazley, “The Scope of Judicial Review”, cited

in McClellan, Id.)

Where there are demonstrable inconsistencies with other decisions.

Where there is discrimination without a rational distinction.

7.4.2.2 Proportionality

Wade & Forsyth stated that in the law of a number of European countries there is a

‘principle proportionality’, which ordains that administrative measures must not be

more drastic than it is necessary for attaining the desired result (Wade & Forsyth,

p.366). According to these authorities, the principle of reasonableness and

proportionality cover a great deal of common grounds. A sever penalty for a small

offence may be challenged based on the principle of proportionality or

reasonableness. They cited further Lord Hoffmann as follows: “it is not possible to see daylight
between them.” Nevertheless a clear difference has emerged and has

been corroborated by the House of Lords. Proportionality, requires the court the

action taken was really needed as whether it was within the range of course of action

that could reasonably be followed.

The concept of proportionality has its origin in the civil law of continental Europe. It

takes whether:

(i) The legislative objective is sufficiently important to justify limiting a fundamental

right;

(ii) The measures designed to meet the legislative objective are rationally connected

to it; and

(iii) The means used to impair the right or freedom are no more than is necessary to

accomplish the objective (de Freitas v Permanent Secretary of Ministry of

Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80).

Proportionality was first adopted in England as an independent ground of judicial

review in R v Home Secretary; Ex parte Daly [2001] 2 AC 532. It was accepted that

while there was considerable overlapping between proportionality and the traditional

grounds of judicial review (especially Wednesbury unreasonableness), the test of

proportionality led to a “greater intensity of review” than the traditional grounds.

What this means in practice is that consideration of the substantive merits of a

decision plays a much greater role (McClellan, p.16.), As McClellan further quote
from the case cited above, there are three significant differences between

proportionality and the traditional grounds of review that may lead to different

outcomes in some cases:

First, the doctrine of proportionality may require the reviewing court

to assess the balance which the decision maker has struck, not merely

whether it is within the range of rational or reasonable decisions.

Secondly, the proportionality test may go further than the traditional

grounds of review inasmuch as it may require attention to be directed

to the relative weight accorded to interests and considerations.

Thirdly…the intensity of the review…is guaranteed by the twin

requirements that the limitation of the right was necessary in a

democratic society, in the sense of meeting a pressing social need, and the question whether the
interference was really proportionate to the

legitimate aim being pursued.

The adoption of proportionality as an independent ground of review is not without

any problem. It may let courts interfere on the merits of an administrative decision

which is not within the purview of judicial review. Appreciating this problem,

McClellan writes:

The adoption in England of proportionality as an independent ground

of review, and the shift towards examining the merits that this involves,

represents a significant departure from the strict observance of the

distinction between legality and merits that still prevail in Australi.

Proportionality has been accepted by the High Court of Australia as a

test of constitutional validity in relation to certain heads of power.

However, it has not been endorsed as an independent test for the

validity of subordinate legislation.)

Concerning the role of proportionality in the context of judicial review of

administrative decisions in NSW [New South Wales], McClellan quoting the

explanation made by Spigelman writes:

It can be accepted that a complete lack of proportion between the

consequences of a decision and the conduct upon which it operates

may manifest unreasonableness in [wednesbury] sense. However, the

plaintiff also invoked “proportionality” as a new and separate ground

of review.

Proportionality has not been adopted as a separate ground for review

in the context of judicial review of administrative action,

notwithstanding a considerable body of advocacy that it be adopted.

The concept of proportionality is primarily more susceptible of

permitting a court to trammel upon the merits of a decision than

Wednesbury unreasonableness. This is not the occasion to take such a

step in the development [of] administrative law, if it is to be taken at

all. (Bruce v Cole and Ors (1998) 45 NSWLR 163 at 185)

As can be inferred from the above, proportionality can be invoked as an independent

ground of judicial review in England, where as in Australia, it cannot be invoked as

an independent ground of judicial review, but only within the spectrum of the

classical Wednesbury unreasonableness. In short, the notion of proportionality has

received increasing importance in recent years. This requires a certain proportion or

balance between the administrative measure to be taken and the end to be achieved. In

France, too, disproportionality of the administrative measure may be invoked as a

ground for reviewing the decision by administrative courts.

7.4.2.3 Irrationality

The distinction between irrationality and unreasonableness is not as such clear; some

authorities appear to use both as separate grounds of judicial review, whereas some

use ‘unreasonableness’ as one of the typologies of ‘irrationality’. Cane, for example,

write, “‘Irrationality’ is more often referred to as ‘unreasonableness’ So, for writers

like are the expounding of what constitutes unreasonable decision is a manifestation

of its irrationality and vice versa. However, which include, writers like Cumper

provide a list of the species of irrationality:

Failure to exercise discretion properly: where the decision-maker either did

not exercise discretion sufficiently free from outside influences, or abused the

discretion;

Acting as though limited by external authorities: where the decision-maker

fails to exercise any discretion at all, believing himself or herself to be bound

by external rule;

An authorized delegation

Decision-maker applies policy without flexibility: where the decision-maker

who is conferred with discretionary powers is expected to consider each case

on its own facts and merits but renders a decision rigidly without considering

whether the particular case has extenuating factors which would necessitate

them making an exception;

Abuse of discretion: where the decision-maker uses power for an improper

purpose or frustrates the legislative purpose; makes a decision on the basis of

irrelevant factors or fails to take account of relevant factors; reaches a decision

that is unreasonable in itself; reaches a decision that is unreasonable itself; Uses of power for an
improper purpose or to frustrate the legislative purpose;

Forming decision on basis of irrelevancies or ignoring relevant factors;

And unreasonableness.

7.4.2.4 Relevant and Irrelevant Considerations

As provided in the preceding sub-section, reaching at a decision on the basis of

irrelevant considerations, or by disregarding relevant considerations, is one of the

manifestations of irrationality. So, as stated in the case R v Secretary of State for

Social Services, ex parte Wellcome Foundation Ltd [1987] 1 WLR 1166, it is a

reviewable error either to take account of irrelevant considerations or to ignore

relevant ones, provided that if the relevant matter has been considered or the

irrelevant one is ignored, a different decision or rule might (but not necessarily would)

have been made. According to Cane, many errors of law and fact involve ignoring

relevant matters or taking in to account of irrelevant ones. Ignoring relevant

considerations or taking account of irrelevant ones may make a decision, or rule

unreasonable in accordance with statutory policy.

As Cooke J pointed out in the case Ashby v. Minister of Immigration [1981] 1 NZLR

222 at 224, considerations may be obligatory i.e. those which the Act expressly or

impliedly requires the Minister to take into account and permissible considerations i.e.

those which can properly be taken into account, but do not have to be (Cited in Wade
& Forsyth, p.381.) Where the decision-maker fails to consider those obligatory

considerations expressed or implied in the Act, the decision has to be invalidated.

Whereas, in the case of permissive considerations, the decision-maker is not required

to strictly abide to such considerations. Rather, the decision-maker is left at discretion

to take the relevant considerations having regard to the particular circumstances of the

case by ignoring those irrelevant ones from consideration. According to Cane, the

number and scope of the considerations relevant to any particular decision or rule will

depend very much on the nature of the decision or rule. Citing the opinions of

different authorities he writes:

For example, licensing authorities are normally required to

consider not only the interests of the applicant and of any

objectors but also of the wider public. By contrast, for example, decisions about individual
applications for social security

benefits are usually to be made solely on the basis of

considerations personal to the applicant. (D. Galligan,

Discretionary Powers (1986), 188-195).) It should be noted,

however, that the courts do not, under this ground of review,

engage in ‘hard-look’ review (as it is called in the United

States [Id. P 314-420]); they do not require decision-makers to

show that they have considered all relevant available evidence

and that the decision made is in the light of that evidence, a

rational way of achieving desired policy goals. All that the

courts do is to decide whether the particular consideration(s)

specified by the complainant ought or ought not to have been

taken into account. (Cannock Chase DC v Kelly [1978] 1 All

ER 152.) In effect, under this head the courts only require the

decision-maker to show that specified considerations were or

were not adverted to. In technical terms, the burden of proof is

on the applicant, but the respondent will have to provide a

greater or less amount of evidence as to what factors were or

were not considered and how they affected the decision. A mere
catalogue of factors ignored or considered may not be enough:

R v Lancashire CC, ex parte Huddleston [1986] 2 All ER 941.)

Decision-makers are not required to conduct comprehensive

pre-decision inquiries or to justify the decision made in the

light of the relevant and available material. Some academics

argue strongly that English courts should follow something like

the hard-look approach, but judges are unlikely to do so for

fear of being seen to be interfering unduly with the policy

choices of decision-makers.

It is suffice to say that where the decision-maker fails to take relevant considerations

into account but takes those irrelevant ones, there is high probability that the outcome

of the decision may be affected by defects than not. So, the interference of the court to

review such kind of decisions seems justifiable.

7.4.2.5 Bad Faith

It is that administrators have a general duty to exercise their powers in good faith to

achieve the purposes for which those powers are entrusted to them according to the

interest of the public. Although it is difficult to discern the constituting elements of all

decisions rendered in bad faith, one can safely say that it indicates lack of good faith

on the part of the decision-maker. Contrasting bad faith with dishonesty, Wade &

Forsyth states: It is extremely rare for public authorities to be found guilty of

intentional dishonesty: normally they are found to have erred, if at all,

by ignorance or misunderstanding. Yet the courts constantly accuse

them of bad faith merely because they have acted unreasonably or on

improper grounds. Again and again it is laid down that powers must

be exercised reasonably and in good faith. But in this context ‘in good

faith’ means merely ‘for legitimate reasons’. Contrary to the natural

sense of the words, they impute no moral obliquity (p. 416.)

In the Wednesbury case cited earlier, Lord Green MR, used the term ‘bad faith’

interchangeably with unreasonableness and extraneous considerations as follows:

It is true that discretion must be exercised reasonably. Now what does

that mean? Lawyers familiar with the phraseology used in relation to

exercise of statutory discretions often use the word ‘unreasonable’ in a

rather comprehensive sense. It has frequently been used and is

frequently used as a general description of the things that must not be

done. For instance, a person entrusted with discretion must, so to

speak, direct himself properly in law. He must call his own attention to

the matters which he is bound to consider. He must exclude from his

consideration matters which are irrelevant to what he has to consider.

If he does not obey those rules, he may truly be said, and often is said,

to be acting ‘unreasonably’. Similarly, there may be something so

absurd that no sensible person could ever dream that it lay within the

powers of the authority. Warrington LJ in Short v. Poole Corporation

gave the example of the red-haired teacher, dismissed because she had

red hairs. This is unreasonable in one sense. In another it is taking into

consideration extraneous matters. It is so unreasonable that it might

almost be described as being done in bad faith; and, in fact, all these

things run into one another.

Appreciating the interconnection between the other grounds of judicial review such as

unreasonableness, irrationality and the consideration of irrelevant matters or ignoring relevant

matters, Wade and Forsyth say Bad faith scarcely has an independent existence as a distinct ground

of invalidity. Any attempt to discuss it as such would merely lead back

over the ground already surveyed. But a few examples will illustrate it

in its customary conjunction with unreasonableness and improper

purposes. If a local authority were to use its power to erect urinals in

order to place one ‘in front of any gentleman’s house’, then ‘it would

be impossible to hold that to be a bona fide exercise of the powers

given by the statute’. If they wish to acquire land, their powers are ‘to

be used bona fide for the statutory purpose and for none other’. If they

refer numerous cases en masse to a rent tribunal without proper

consideration, this is not ‘a valid and bona fide exercise of the

powers’. If a liquor license is cancelled for political reasons, the

minister who brought this about is guilty of ‘a departure from good

faith’. Such instances could be multiplied indefinitely. Cases of

misfeasance in public office, where the misfeasor knows that he is

acting outside his powers, could be added to the collection.

The out come of a decision may be affected due to the existence of bad faith on the part of the

decision-maker. The unreasonableness or irrationality of a decision may result from a

decision that is induced by bad faith on the part of the decision maker. But the reverse may

not be always true. That is, unreasonable decision may be passed in good faith due to the

erroneous bona fide appreciation of matters. So, as the interrelation between

unreasonableness and bad faith is not as such overlapping, the existence of the former may

not help us to infer the existence of bad faith on the part of the decision-maker. As discussed

earlier, where a decision is found manifestly unreasonable, judicial review can be invoked

against such decision regardless of whether the decision is passed in good faith or its

antithesis bad faith. But it is difficult to expect reasonable decision, where the decision is

induced by bad faith or extraneous factors. Thus, it is possible to treat bad faith within the

spectrum of the various grounds of judicial review discussed earlier.

7.5 Limitations on Judicial Review

The preceding sections have thoroughly discussed the grounds that give rise to judicial

review. This section shall further appreciate some of the most important procedural and

substantive constraints of judicial review. Issues related to the determination of the parties to

a judicial review, the availability, timing and scope of judicial review and other preliminary

hurdles, if any, are the main concerns of this section.

According to Cumper (Cumper PP.292-293.), in determining whether a particular issue is

appropriate or not for judicial review, a court [in England] will often consider the following

factors, by asking:

Is the decision in question a public law matter and thereby subject to judicial

review?

Has the right to judicial review been expressly excluded, say in a statute?

Has the applicant sufficient interest in the issue (locus standi)?

Has the applicant sought permission for judicial review within 3 months of the

actual reason for bringing the application?

Do specific grounds for judicial review exist?

But these are not the only questions that the court may ask in determining whether the

decision complained of is appropriate for judicial review or not. The following questions

must be added to the above questions:

Are internal avenues exhausted?

Is the decision in question ripe for judicial review?

Since many of these questions are appreciated in the previous chapters of this module, the

discussion in the subsequent sub-sections will give due attention to some selected issues.

Is the decision in question a public law matter and thereby subject to judicial review? As you

may recall from the discussion in the previous units, administrative law, as a branch of public

law, concerns with the behavior of the various administrative organs of the government in

their relation with citizens and the interrelation among themselves. In principle, only

decisions of administrative bodies passed in their official capacity (decisions of governmental

nature) can be subjected to judicial review. this means that for acts or decisions falling

outside the purview of administrative law, the complainant cannot invoke judicial review.

Do specific grounds for judicial review exist? The grounds or conditions that justify judicial

intervention/review are thoroughly discussed in the preceding section. The point that should

be made clear here is that the reviewing court does not have unlimited power to test the

decisions of administrative agencies. The power of the court is limited to test the legality of

the decision complained of. So while the court determines to review the decision of an

agency, it has to make sure that any of the specific grounds/conditions justifying judicial

review as discussed earlier are met.

The other important point included in the above list, although it may necessarily be taken as a

mandatory requirement by all jurisdictions, is related to seeking permission for judicial

review. For example, in England, if an aggrieved person wants to invoke judicial review, s/he

must first seek permission to apply for judicial review. Without securing permission upon

application from the concerned court, within the statutory time limit of three months, an

aggrieved person cannot invoke judicial review. The rational behind putting this procedural

requirement is said to be the need to filter out those cases which are not amenable to judicial

review. So, in determining whether a particular issue is suitable for judicial review, the court

is expected to consider all the factors listed above.

7.5.1 Standing
As was provided in the above lists, in order to obtain leave/permission to bring an action for

judicial review, the applicant must have sufficient interest in the matter to which the

application relates. A worth discussing point here is related to the nature of the interest

affected. What is a ‘sufficient interest’? In answering this question, Cane gave a frequently

quoted remark as follows:

The guidance given in the Fleet Street Casuals case as to the meaning of the

term ‘sufficient interest’ is very abstract. Can anything more concrete be said

on this topic? In answering this question, we need to distinguish between

personal interests and public interests. An applicant would obviously have a

sufficient personal interest in a decision which adversely affected the

applicant’s health or safety. A person would also have a sufficient interest in a decision which
affected his or her property or financial well-being. For

instance, neighbours have sufficient interest to challenge planning decisions in

respect of neighbouring land. Producers and traders have standing to

challenge the grant of a license or other benefit to a competitor, and a

taxpayer might have standing to complain about the favourable treatment of a

competitor by the revenue. The expenditure of time, energy and skill in caring

for a particular species of wildlife or some feature of the natural environment

could give a person a sufficient interest in a decision adversely affecting that

species or feature. An aesthetic interest in the built environment may also

generate a sufficient interest.

What about public interest? It seems clear that the public has a sufficient interest in the

observance of basic constitutional principles such as ‘no taxation or expenditure without

parliamentary approval’. The public also has an interest that governmental powers such as

that to ratify treaties or to set up a non-statutory compensation scheme (Cane, pp. 57-58.)

An important case is Inland Revenue Commissioners v National Federation of Self-Employed

and Small business Ltd [1982] AC 617 – commonly known as Lords held that NFSSB did not

have locus standi to challenge the Revenue’s decision the Fleet Street casuals case. The

NFSSB was attempting to challenge the Revenue’s grant of a tax amnesty to Fleet Street

casual workers on the grounds that it was illegal. The House of Lords held that NFSSB did

not have locus standi to challenge the Revenue’s decision with regard to another group of
taxpayers. According to Cumper, the House of Lords stated that the question of locus standi

should be looked at in two stages:

At the application for leave for judicial review; and

At the hearing it self

At the first stage, only cases where the applicant clearly does not have sufficient interest

would be rejected. At the second stage, however, a more detailed look at the applicant’s

‘standing’ should take place- it then becomes important to examine the merits of the case if

the applicants have strong grounds for review, it is more likely that they will be deemed to

have the necessary locus standi (Cumper, p. 297.)

In determining whether or not the applicant has sufficient interest (locus standi) for judicial

review, the general opinion is that the legal and factual circumstances of each case need to be
considered critically. However, Cane suggested the following guidelines need to be

considered:

Examining the case law: the question of sufficient interest is partly a question

of legal principle –what do earlier cases say about standing? – and partly a

question of fact to be decided in the light of circumstances of the case before

the court. So it will often be impossible to be entirely sure, in advance of

litigation, whether any particular applicant has a sufficient interest.

Look at the relevant statute: the question of sufficient interest has to be

judged in the light of the relevant statutory provisions – what do they say, or

suggest about who is to be allowed to challenge decisions made under the

statute.

Consider the nature of the applicant’s complaint: having look at the substance

of the complaint may patently show that the applicant has or does not have

sufficient interest.

The seriousness of the alleged wrong: whether the applicant’s interest is

sufficient depends to some extent on the seriousness of the alleged illegality.

Standing is a preliminary question, separate from that of the substance and

merits of the applicant’s case: standing rules determine entitlement to raise

and argue the issue of illegality, and it makes little sense to say that

entitlement to argue the merits of the case depends on whether one has a good
case on the merits. Only if the chance of failure at the end of the day

approaches certainty should the likely outcome affect the question of access to

the court.

Courts dislike the possibility of there being a lacuna in the legal system – if there is a chance

that an aggrieved person will not have an alternative means of challenging the decision in

question, it increases the likelihood that the applicant will satisfy the locus standi

requiremen. (Cane, pp. 49-50.).

Concerning the function/purpose of standing rules, Cane further states:

In general terms, it is to strict access to judicial review. But why

restrict access? One suggested reason is to protect public bodies from

vexatious litigants with no real interest in the outcome of the case but

just a desire to make things difficult for the government…. Other

reasons for restricting access have been suggested: to prevent the conduct of government business
being unduly hampered and delayed

by ‘excessive’ litigation; to reduce the risk that civil servants will

behave in over-cautious and unhelpful ways in dealing with citizens for

fear of being sued if things go wrong; to ration scarce judicial

resources; to ensure that the argument on the merits is presented in the

best possible way and by a person with a real interest in presenting it

(but quality of presentation and personal interest do not always go

together); to ensure that people do not meddle paternalistically in the

affairs of other ( pp.59-60).

In short, the purpose of the standing requirements is simply to ‘filter out’ unmeritorious,

frivolous or trivial applications, and thereby to save the court time (Cumper, p.298). The

general requirement of standing dictates that in order to invoke judicial review, the

complainant must show that the decision in question is one injurious to his/her interest.

According to Brown & Bell, “this requirement creates no difficulty in proceedings against the

administration for damages. It is rather in proceedings to annul an administrative act that the

rules governing the plaintiff’s locus standi…have been worked out in considerable detail.

Then, who would be the applicants for judicial review? According to Cane, judicial

review is available not only to citizens (individuals, corporations, trusts and so on) with
grievances against government, but also to government bodies with a grievance against

another government body. To be entitled to seek a remedy by way of judicial review an

applicant must have sufficient standing (locus stander P. 420). Dwelling on this principle, the

House of Lords in the Fleet Street casuals case cited above rejected the application of the

National Federation of Self-Employed and Small Business Ltd that was attempting to

challenge the Revenue’s grant of a tax amnesty to Fleet Street casual workers on the grounds

that it was illegal. The principle dictates that only individuals or a group of individuals whose

interest is substantially affected may invoke judicial review.

Concerning application for judicial review by pressure groups, there is no consistent practice

among jurisdictions. Some countries allow action by pressure groups such as associations to

invoke judicial review on behalf of their members. Even the case laws of England, shows us

lack of inconsistency: some pressure groups are denied access to judicial review on the

grounds of standing, but some others have been shown successfully appearing before the court of
review representing others. Some countries like India also allow public interest

litigation – where any individual is allowed to seek judicial review of an agency’s action on

matters that affect the interest of the general public.

Coming back to the issue of standing in Ethiopia, the FDRE Constitution in Article 37

stipulates that:

“(1) Every one has the right to bring justiciable matters to, and to obtain a decision or

judgment by, a court of law or any other competent body with judicial power.

(2) The decision or judgment referred to under sub-Article 1 of this Article may also be

sought by:

(a) Any association representing the collective or individual interest of its members; or

(b) Any group or person who is a member of, or represents a group with similar interests.

As clearly stated in the above provisions of the constitution, any one whose interest is

sufficiently at stake, any association on behalf of the collective interest of its members or on

behalf of the individual interest of its members, any group of individuals with similar

interests or any member of such identifiable group on such matters of common interest can

apply for judicial review provided that the matter is justiciable and the avenue of judicial

review is there. However, the provisions of the constitution stated above are not clear enough

whether or not they give room for public interest litigation on matters that concern the
general public. Of course, there appear under the constitution a departure from the rigid

requirements of locus standi provided under our civil procedure code that restricts the right of

standing only to those persons whose interest is directly and sufficiently at stake. But on

matters related to environmental Pollution, the Environmental pollution Control Proclamation

authorizes any one to institute a complaint before the concerned organ of the government

without the need for showing locus standing.

7.5.2 Justiciability

The other limitation on the availability of judicial review is related to the justiciability of the

decision in question. Broadly speaking, administrative controversies can be classified into

justiciable and non-justiciable. “Justiciable controversy” as defined in Black’s Law

Dictionary, “is a controversy in which a present and fixed claim of right is asserted against one who
has an interest in contesting; rights must be declared upon existing state of facts and

not upon state of facts that may or may not arise in future.”

The genesis of the doctrine of justiciability is traced back to the U.S.A. Constitution. Under

Art III of the U.S.A. Constitution, matters not to be precluded as being ‘nonjusticiable’ need

to pass the screening test of “case of controversy” doctrine. Courts require that litigation be

presented in an adversary form and be capable of judicial determination with out leading to

violation of the principle of separation of powers (Destaw Andarge, [Addis Ababa University

Facilty of Law (unpublished)].) The justiciability of the controversy refers to the capability of

the disputed state of fact to be resolved by the application or interpretation of existing laws.

Courts are expected to entertain only issues that can be legitimately judicialized (justiciable

issue) – issues that can be conclusively resolved through the application or interpretation of

laws in force.

The classification of the disputed issues into justiciable and nonjusticiable has a far-reaching

implication on the courts judicial power in general and reviewing power in particular. Only

justiciable matters are said to be suitable or appropriate for judicial appreciation. As courts

are experts in law, it is justifiable to make them the final arbiters of law. But on

nonjusticiable controversies – controversies that are not capable of being resolved through the

application or interpretation of existing laws, for example, political/ministerial decisions or

purely administrative/managerial decisions are not suitable for judicial consideration. As was

discussed somewhere else, the scope of judicial review is limited to testing the legality or
illegality of the decision contested. The reviewing court does not concern with the merits of

the decision. Courts are not expected to have better expertise on the merits of the decision

than the concerned administrative agencies. Rather, the bureaucracies that are composed of

experts from different walks of the profession are said to have better expertise on

administrative matters. Extending judicial review to nonjusticiable controversies is not only

inappropriate for the court’s business; it may also be against the principle of separation of

powers. The principle of separation of state power dictates that each organ of the government

shall refrain from interfering in the affairs of the others. This means, inter alia, that the

judiciary should refrain from unduly interfering in matters that are exclusively entrusted to

the other organs of the government. Particularly important to the discussion in hand is that the

judiciary should not interfere in matters that are exclusively reserved to the administrative Hence,
where an application seeking permission for judicial review is brought to the

competent court, it is advisable to check whether the decision contested is justiciable or

otherwise before hand.

7.5.3 Exhaustion and Ripeness

Judicial review is the last resort that can be invoked by a party aggrieved by the decision of

an administrative body after exhausting all the avenues available in the concerned agency.

Being the last resort, the party aggrieved must go first through the internal agency avenues.

Thus, a party seeking judicial review will usually be required, as a condition precedent to

challenge the validity of the administrative action, to exhaust all the remedies or avenues

available in the administrative channels. The basic tenet behind this rule is that agencies must

be given the opportunity to rectify their mistakes and resolve matters in light of their own

policy objectives and priorities before judicial intervention. As was discussed earlier,

depending upon their administrative organization, agencies may have their own internal

grievance/complaint handling avenues. These agency avenues have to be exhausted before

judicial review is sought. Where, for example, there is a statutory right to appeal against the

decision in question before a body within/outside the agency or before a regular court,

judicial review cannot be invoked. Normally, an aggrieved party may not invoke judicial

review before looking for agency internal remedies. But the doctrine of exhaustion of internal

remedies may be successfully raised as a defense at the hearing stage by the concerned

agency. The agency raising defense must prove, of course, the existence of a suitable internal
avenue that ought to have been used by the complainant. However, in case where there is an

excessive delay on the part of the administrative agency or where there is a great possibility

that the complainant will incur an irreparable injury awaiting agency review, the applicant

may be dispensed from the requirement of exhaustion of internal remedy.

The doctrine of exhaustion of internal remedies, in addition to giving agencies the

opportunity to rectify their mistakes in their own avenues in the light of their policies, also

avoids premature intervention of the court on administrative matters and relieves the court

from seized by over flooding administrative complaints.

The other important limitation on the availability of judicial review is ‘ripeness’. In order to

invoke judicial review, the case complained of must be ‘ripe for review’. The requirement of
‘ripeness’ shares some common features with the doctrine of exhaustion of internal remedy.

It requires the complainant to wait until the concerned agency has passed its final decision.

Before the concerned agency passes its final decision over the subject matter, a party cannot

invoke judicial review against a speculated or hypothetical future decision. Until the

concerned agency gives its decision on the subject matter, as a rule, judicial review may not

be invoked.

The requirements of finality and ripeness are designated to prevent premature court

intervention in the administration process, before the administrative action has been finally

considered, and before the legal disputes have been brought into focus. However, in some

cases where the claim has urgent character that on delay itself may inflict irreparable injury,

the controversy would be as ripe for judicial review consideration as it calls ever be. The

question in such cases is whether administrative inaction is equivalent to denying relief’. So,

where an agency excessively or unreasonably delays or withholds action/decision altogether,

although no final decision has been made, judicial review can be invoked seeking appropriate

remedy. In this case, the requirement of ripeness (finality) may not stand valid to preclude

judicial review. In this regard, it deems important to cite as a closing remark the following

note concerning the practice in French:

It [the requirement of prior decision or ripeness], cannot, however, be

used as a device on the part of the administration to deny the victim

justice; thus, the silence of the administration when faced with the

question for compensation is, by special statutory provision, treated as

an implied rejection of the request after the lapse of four months.

(Brown & Bell, p.157).

7.5.4 Finality Clause

As it has been already stated in the previous units of this module, judicial review (the

supervisory power of the court) is treated, especially in the common law world as the inherent

power of regular courts. Since courts are the ultimate arbiters of the law, it is argued that

they have an inherent power to review any administrative decision where any of the grounds

for review are there. The term ‘inherent’ in this context implies that the source of the

reviewing power of the court is not statute; but it is inherent in the very fundamental principle of
division of state power among the three organs of the government where by judicial power

is ultimately vested in the regular courts.

Despite the fact that statutes are not the source of the supervisory power of courts, it is not

uncommon to exclude this power of the court by statutes. There are occasions where a statute

may exclude judicial review of agency decisions expressly, or impliedly.

While delegating rulemaking and/or judicial powers to an agency, the legislature may in the

parent act expressly preclude the power of regular courts to review decisions of the agency

passed in such capacity. That means although the source of the reviewing power of the court

is not statute, such power can be excluded by incorporating a finality clause in a statute (the

Parent Act). However, such exclusion has to be expressly stated if it is needed to have effect

in limiting or eliminating the inherent power of the court. For example, where the Parent Act

incorporates a provision stating that the findings or decisions of the agency on such and such

matters ‘shall not be called into question’ or ‘shall be final’, what does this finality clause

imply? Is the intention of the parliament here to exclude the right to appeal or to deny any

access to court to challenge any decision made under the Act? Authorities suggest that unless

otherwise the finality clause incorporated in an Act expressly and clearly excludes judicial

review of a decision passed under the Act, it has to be interpreted restrictively to mean no

appeal can be lodged against the decision. Cane, for example, stated: “judicial review is seen

as a basic right of citizens which the legislature will be taken to have excluded only by the

very clearest words. This attitude seems to be the result of viewing judicial review as chiefly

designed to protect the rights of the individual from unlawful interference by government.”

(p.81). There are similar arguments in case laws. In this regard it is important to reproduce
the following landmark cases cited in Cumper’s work:

Some attempts at exclusion, however, will never oust the court’s jurisdiction. For example, in

R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574, the Court of Appeal held

that a clause stating that a decision of the Tribunal ‘shall be final’ would not exclude the

court’s jurisdiction to review. Lord Denning stated that ‘the remedy by certiorari is never to

be taken away by statute except by the most clear and explicit words’ and that the word

‘final’ only means “without appeal” and not without recourse to certiorari.” Similarly, in

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the Court of Appeal

held that a clause in a statute stating that a decision of the FCC ‘shall not be questioned in

any court of law’ would not exclude the court’s jurisdiction to review where the decision-maker had
made an error of law which affected his/her power to decide. In asserting the

court’s right to retain the power of judicial review, Lord Wilberforce noted: “What would be

the purpose of defining by statute the limit of a tribunal’s powers, if by means of a clause

inserted in the instrument of definition, those limits could safely be passe.” (Cumper, pp.

295-296).

At this juncture, an important question may be raised: What will happen where there is no

express statutory exclusion on judicial review? Concerning this issue, Cumper states the

following remark:

On occasions where there has been no express attempt in a statute to

exclude judicial review, the courts may decide that they have been

impliedly excluded because an alternative remedy exists. However, the

court will retain discretion to review, even where there is an

alternative remedy available, if the case involves (inter alia) serious

illegalities or to not intervene would lead to a serious delay or an

unsatisfactory outcome for the applicant (P. 296).

However, the implied exclusion is indicated here has a provisional nature. As discussed in the

preceding sub-section, until after the alternative remedies are exhausted by the complainant,

in line with the principle of the doctrine of exhaustion of internal remedies, the court is

required to refrain from prematurely interfering in administrative matters. For detail, refer to

the discussion in the previous section.

Another important question may be raised here. What about in case the legality of the
finality clause that prohibits judicial review is questionable? In the United States, no problem

as the US Supreme Court has the power to interpret the Constitution; it can automatically

invalidate the statute that incorporates such unconstitutional finality clause. But, the answer

may be different in the United Kingdom. As was discussed somewhere else, the UK

Parliament is sovereign. It can promulgate any law whatsoever. In this regard, the court

cannot question the status of the law enacted by the Parliament. So, where in a statute the UK

parliament incorporates a finality clause that expressly precludes the court to review

administrative decision on a certain subject matter, the court will not do any thing even if the

legality of such clause or the administrative decision passed under its cover is questionable.

In this regard, it is important to see the French experience that is closely similar to that of the

situation in Ethiopia. The French parliament is sovereign in the sense that statutes promulgated by
the parliament cannot be subjected to judicial review (by administrative or

civil court) for reasons of unconstitutionality. This is the exclusive power of the

Constitutional council. Dwelling upon this constitutional theory, one can say that French

courts, be it administrative or civil court, cannot bypass the “sufficiently categorical words of

exclusion in a statute” that excludes the jurisdiction of administrative courts to review some

administrative decisions. However, the paradox is noted as follows:

It is a striking fact, however, that there is no recorded instance of this

[exclusion of jurisdiction] having occurred. Judicial review of

administrative action has become so much part and parcel of the basic

republican tradition which underlies all constitutions since 1875 that it

is inconceivable in the present temper of French politics that any

parliament would be willing, or any government would venture, to

break with that tradition (Brown & Bell, p. 164).

Thus, as it can be inferred from the opinion cited above, French administrative courts have,

from their rich experience, developed a sort of unwritten ‘general principle of law’ as a kind

of basic legal framework into which the statute must somehow be fitted. Thus, the

presumption in France is in favour of judicial review of administrative actions.

However, in Ethiopia, wherever there appears finality clause incorporated in a statute the

constitutionality of which is questionable, or where an illegal administrative decision is

passed under the cover of such finality clause be itself constitutional or unconstitutional, what
can the court do? Obviously, where the constitutionality of the finality clause is a matter of

interpretation, this is exclusively the power of the House of Federation. It has to be referred to

the House. But, where the finality clause as a plain fact contravenes any fundamental

principle of the constitution, or even if the finality clause is presumed as if it were

constitutional, but the administrative decision passed under its cover as a plain fact

contravenes any higher law, it seems that it is a matter of policy advisable for the court to

challenge the decision. After all, the intention of the finality clause is not to galvanize illegal

acts of the administration, but to achieve certain intended objectives. But where things go

contrary to what was intended for, why should such clause be observed to shield the corrupt

administrator’s act?