ZAMBIA OPEN UNIVERSITY

CONSTITUTIONAL LAW II

LL5 ASSIGNMENT 2

BANJI KALENGA

April 2019
INTRODUCTION

This essay is written in response to the assignment question: Discuss with reference to cases
how judicial review is said to be an enforcement mechanism for the rule of law doctrine.
This essay will answer this question by firstly exploring what Judicial Review is, describing
the doctrine of the rule of law and then delving into case law that demonstrates how judicial
review enforces the rule of law.
JUDICIAL REVIEW
Judicial Review is a public law remedy by which an individual can challenge the legality of
decisions, determinations, orders or even omissions of persons or bodies performing public
functions. It is by judicial review that a court can exercise its supervisory jurisdiction over
inferior bodies, tribunals, public bodies and individuals performing public functions. Judicial
review can also be described as a procedure whereby, a court examines the exercise of a
delegated discretionary decision-making power, in order to ensure that the power has been
properly exercised for its lawful purpose. The Court can intervene where the person or body,
which has been given the power fails to act, when it is required to or when it makes a
decision which it ought not to have made when acting properly within the terms of the
mandate given to them.

The principal of judicial Review has been defined or explained in the Oxford Dictionary as
being a principal by which the high court exercises supervision over public authorities in
accordance with the doctrine of ultra vires. The main purpose of judicial review is that it is
designed to prevent the excess use and abuse of power and the neglect of duty by public
authorities. It is a doctrine under which legislative and executive actions are subject to
review, and possible invalidation in the judiciary. It aims at ensuring that legislative
enactments or executive actions which contravene the Constitution are checked. In the
Zambian Constitution reflected in Article 1(1) where it provides that any law inconsistent
with the Constitution is, to the extent of the inconsistency declared null and void and may
thereby be struck down.

The scope of judicial review must be defined not in terms of the protection of individual interests,
but in terms of the extent of power and the legality of its exercise. This is because there is a
lurking temptation to focus more on the protection of individual interests brought about by
judicial review litigation, than the limit on the exercise of power which judicial review
proceedings equally brings forth.

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According to Hillarie Barnett “Judicial review represents the means by which the courts
control the exercise of governmental power. Government departments, local authorities,
tribunals, state agencies and agencies exercising powers which are governmental in nature
must exercise their powers in a lawful manner. Judicial review has developed to ensure that
public bodies which exercise law making power or adjudicatory powers are kept within the
confines of the power conferred.” 1
The grounds under which judicial review can be brought before a court were rationalised by
the Supreme Court in the commonwealth (House of Lords) into three principal categories:
 Irrationality - The most celebrated case on irrationality is Associated Provincial
Picture Houses Ltd. v Wednesbury Corporation.2 It is an English decision which set
down the standard of unreasonableness of public body decisions which render them
liable to be quashed on judicial review.
 Illegality - Illegality connotes that the decision, omission, or action is in itself against
the law.
 Procedural impropriety - there is an insistence that prescribed procedure be followed
unless compelling reasons exist which makes it necessary to dispense with the
procedure.
Judicial review should also be viewed from the theory of separation of powers. This was a
theory that was postulated by Montesquieu, and embraced by Justice Marshal in Murbury v
Madison3. The doctrine of separation of powers is based on the idea that no branch of
government should be more powerful than any other; each branch of government should act
as a check on the powers of the other branches of government, thus creating a balance of
power among all branches of government. In this way, judicial review comes in to maintain
this balance of power by reviewing acts, omissions, and decisions that are ultra vires a
government branch’s powers.

THE DOCTRINE OF THE RULE OF LAW

The doctrine of Rule of law is of old origin and is an ancient ideal. It was discussed by
ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where
the law is subject to some other authority and has none of its own, the collapse of the state, in

1
Hilaire, Barnett, (1996). Constitutional & Administrative Law. London: Cavendish Publishing. p837.

2
[1968] AC 997.
3
[1803] 5US SC 137

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my view, is not far off; but if law is the master of the government and the government is its
slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing
that “law should govern and those in power should be servants of the laws.”
A.V. Dicey argued that the rule of law - in its practical manifestation - has three main
aspects:
 no man is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of law established in the ordinary legal manner before the ordinary
courts of the land. In this sense, the rule of law is contrasted with every system of
government based on the exercise by persons in authority of wide, arbitrary, or
discretionary powers of constraints.
 no man is above the law; every man and woman, whatever be his or her rank or
condition, is subject to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals.
 the general principles of the constitution (as, for example the right to personal liberty,
or the right of public meetings) are, with us, the result of judicial decisions
determining the rights of private persons in particular cases brought before the courts.
In a broader sense Rule of Law means that Law is supreme and is above every individual.
No individual whether if he is rich, poor, rulers or ruled, etc are above the law and they
should obey it. In a narrower sense, the rule of law implies that government authority may
only be exercised in accordance with the written laws, which were adopted through an
established procedure. The principle of Rule of Law is intended to be a safeguard against
arbitrary actions of the government authorities.
CASE LAW
The cases below are used to illustrate the use of judicial review to enforce the doctrine of
Rule of law.
Attorney General v Fulham Corporation4
Facts: The corporation ran a wash house allowing users to attend and to wash their clothes. It
introduced a new scheme under which a user would purchase a wash bag, fill it with clothes
and leave it to be washed by corporation employees. This scheme was challenged.

4
[1921] 1 Ch 440

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Held: The new scheme fell outside the scheme authorised by the 1846 Act and was therefore
unlawful. The corporation, a statutory body, was to be restrained from acting outside its
powers.

This case demonstrates that using judicial review a body may be restrained from acting ultra
vires if it uses its powers for the wrong purpose. The is in conformity to the upholding of the
doctrine of the Rule of law as no one is supposed to carry out any actions that are outside
what the law prescribes.

Padfield v Minister of Agriculture Fisheries and Food5

Facts: Padfield and other milk producers in the South East Region argued they should get
more milk subsidies to reflect growing transport costs, and applied to court to compel the
Minister to appoint an investigation. The Agricultural Marketing Act 1958 section 19 said a
committee of the Milk Marketing Board can investigate (3)(b) ‘if the Minister so directs’
after a complaint on a scheme’s operation if it cannot be considered by a consumers’
committee, and (6) if it reports a scheme is ‘contrary to the interests of consumers of the
regulated products’ or ‘any persons affected by the scheme’ and is ‘not in the public interest’
the Minister can amend the scheme, revoke it or direct the board to rectify it. There were 11
milk regions with different prices for milk, fixed depending on costs of transporting milk
from producers to consumers. All milk producers had to sell their milk to the Milk Marketing
Board. Differentials were fixed a few years before and transport costs had changed. The SE
region argued the difference between it and the Far Western Region should be altered: this
would incidentally affect other regions. Board members were elected by individual regions,
so it was impossible for SE producers to get a majority for their proposals. They asked the
Minister of Agriculture, Fisheries and Food (Fred Peart) to appoint a committee of
investigation. He refused. They requested mandamus.

Held: A Minister’s discretion to refuse an investigation was subject to judicial review where
a refusal would frustrate the policy of an Act. An Order should be made to direct the minister
to consider the complaint.

The learning point from this case is that an official or public body may act ultra vires if it
abuses its discretion with which it has been vested. This is in conformity with the doctrine of

5
[1968] AC 997

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the Rule of law which demands that state bodies and officials act within the powers that the
law accords them.

Associated Provincial Picture Houses Ltd v Wednesbury

Corporation6

Facts: In 1947 Associated Provincial Picture Houses was granted a licence by the
Wednesbury Corporation in Staffordshire to operate a cinema on condition that no children
under 15, whether accompanied by an adult or not, were admitted on Sundays. Under the
Cinematograph Act 1909, cinemas could be open from Mondays to Saturdays but not on
Sundays, and under a Regulation, the commanding officer of military forces in a
neighbourhood could apply to the licensing authority to open a cinema on Sunday.

The Sunday Entertainments Act 1932 legalized opening cinemas on Sundays by the local
licensing authorities "subject to such conditions as the authority may think fit to impose" after
a majority vote by the borough. Associated Provincial Picture Houses sought a declaration
that Wednesbury's condition was unacceptable and outside the power of the Corporation to
impose.

Held: The Court held that it could not intervene to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the court would
have to conclude that:

 in making the decision, the defendant took into account factors that ought not to have
been taken into account, or
 the defendant failed to take into account factors that ought to have been taken into
account, or
 the decision was so unreasonable that no reasonable authority would ever consider
imposing it.

This case demonstrates that the law imposes standards of reasonableness upon public bodies,
and failure to act in a reasonable manner may cause a body to act ultra vires and in turn
outside the boundaries of the doctrine of the Rule of law.

6
[1948] 1 KB 223

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Barnard v National Dock Labour Board7
Facts: The appellant sought a declaration that the employer had imposed disciplinary
measures improperly, in that they had been put in place by a port manager who possessed no
relevant disciplinary powers.

Held: The delegation by the London Dock Labour Board, a statutory body, of its disciplinary
functions to a port manager, was unlawful. The manager’s purported suspension of workers
was therefore a nullity, and the Board was unable to ratify the decision.

The main message in this ruling is that a body acts ultra vires if it is conferred with delegated
powers but delegates them further to another.

R v IRC ex parte Preston8

Facts: The applicant was assured by the Inland Revenue that it would not raise further
inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and
to pay a certain sum in capital gains tax.

Held: Where the lawfulness of the section 9A notice was itself in issue, neither the question
of a section 19A notice nor of an appeal against it arose. Judicial review can be competent in
exceptional circumstances, where the challenges to the decisions include assertions that there
has been an abuse of power and unreasonableness.

This case demonstrates that the rules of natural justice must also be observed in decision
making: where an individual has a right or interest at stake because of an administrative
decision, he is entitled to a fair treatment. This is in line with the doctrine of the Rule of law
that calls for safeguarding against arbitrary actions of the government authorities.

Council of Civil Service Unions v Minister for the Civil Service9

Facts: The Government Communications Headquarters (GCHQ) is a British intelligence
agency that provides signals intelligence to the British government and armed forces. Prior to
1983 its existence was not acknowledged, despite the fact that it openly recruited graduates.
Following a spy scandal in 1983, the organisation became known to the public, and the
government of Margaret Thatcher decided a year later that employees would not be allowed
to join a trade union for national security reasons. The Minister for the Civil Service is a
position held ex officio by the Prime Minister.
7
[1953] 2 QB 18
8
[1985] AC 835
9
[1985] AC 374

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This was done through an Order in Council, an exercise of the Royal Prerogative. Despite an
extensive publicity campaign by trade unions, the government refused to reverse its decision,
instead offering affected employees the choice between £1,000 and membership of a staff
association or dismissal. Those employees dismissed could not rely on an industrial tribunal,
as they were not covered by the relevant employment legislation. As such, the Council of
Civil Service Unions decided judicial review was the only available route.

The decision to ban workers at GCHQ from trade union membership had been taken
following the meeting of a select group of ministers and the prime minister rather than the
full Cabinet. This is not unusual, even in relation to high-profile decisions: a decision was
similarly taken to authorise the Suez operation of 1956 and the decision to transfer the ability
to set interest rates to the Bank of England in 1997.

Held: The House of Lords held the Royal Prerogative was subject to judicial review, just like
statutory instruments. However, on national security grounds, the action of restricting the
trade union was justified.

This case established the grounds under which a judicial review would be brought into three
principal categories; irrationality, illegality and procedural impropriety.

Sharp v Wakefield10

In this landmark case, the court that when it is said that something is to be done within the
discretion of the authorities, that something is to be done according to the rules of reason and
justice, not according to the private opinion, according to law not humour. It is not to be
arbitrary, vague, or fanciful but legal and regular.

This ruling is in line with the doctrine of the Rule of law principle that government authority
may only be exercised in accordance with the written laws.

10
[1891]AC 173

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CONCLUSION
Judicial review is a legal process by which individuals and organizations can challenge
decisions made by public authorities on the basis that they are unlawful, irrational, unfair or
disproportionate. It is a direct accessible check on abuse of power, a means of holding the
executive to account and ultimately enforcing the doctrine of the Rule of law.

Bibliography

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Besa, M. (2015). Constitution, governance and democracy. Ndola: Mission Press.

Besa, M. (2007). Constitutional law II. Lusaka: ZAOU.

Constitution of Zamibia. (2016). Amendment Act No. 2.

Barnett, H. (2002). Constitutional & Administrative Law. London: Cavendish.

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