WHAT IS JUDICIAL REVIEW?
Judicial Review is used to describe two separate ideas:
• Judicial Review in relation to the constitution : This is a constitutional arrangement in which the judiciary has been given power to review the actions of the other organs of government to ensure that they stay within their limits.
• Judicial review in relation to administrative actions: This is the procedure by which the courts are given the power to determine the legality of decisions made by administrative bodies.
In the second sense, judicial review properly comes within the ambit of administrative law. In Awuni v WAEC, the Supreme Court quashed an administrative decision by WAEC to cancel the entire results of Awuni and others who sat for the SSSCE examination because the decision was not fair and there was a breach of the audi alteram partem rule of Natural Justice. Again, in Republic v Fast Track High Court, Ex – Parte CHRAJ (Richard Anane interested party), the Supreme Court held that CHRAJ could not commence investigations into abuse of power without formal complaint.
WHAT ARE THE FUNCTIONS OR IMPORTANCE OF JUDICIAL REVIEW?
1. According to Justice Sowah in Sallah v AG, the power of judicial review is the fertilizer which allows the constitution to grow. For instance, Constitutions provide for change which may take the form of total replacement or replacement of some parts (amendment). Constitutional review thus allows a constitutional system to grow without formal amendment.
2. The power of judicial review enables judges to participate in the implementation and formulation of decisions.
3. The process gives teeth to the arrangements, the values, checks and balances , provided in the constitution. Thus policing of the constitution.
WHAT ARE THE TWO WAYS OF MANIFSTATION PF JUDICIAL REVIEW?
Judicial review manifests itself either through a direct or indirect review.
1. Direct review: This takes the form of the challenge of constitutionality of something. This mostly invalidates a legislation. The general direct review power is under Article 2 of the 1992 Constitution. This is clearly intended to protect Article 1.
2. Indirect Review: This takes the form of interpretation of provisions in the Constitution. It is a regular, on-going matter which takes place all the time in the legal system. See Article 130 of the 1992 Constitution.
WHAT IS CONSTITUTIONAL VALIDITY?
A constitutional review is a power and a process either given expressly to the judiciary in the constitution or asserted by the judiciary based on the nature of the constitution to determine questions of constitutional validity of action based on laws of policies and any other question where the consistency or inconsistency, conformity or inconformity of a law or a policy with supreme law is at issue [Marbury v Madison]. It is measuring a given act against the values of the constitution.
Some legal systems vest the power of constitutional review in all the courts in the legal system Eg. US. Some also vest the power in only the court of last resort (The highest court of the land). Eg. Ghana save issues relating to human rights. Some systems create a special constitutional court outside the regular court system and it is only this court that can deal with the issues of constitutional review. Eg. Italy, Germany and Netherlands. Some systems also create a special body which sits outside the court system to determine issues of constitutional validity. Typically, the composition makes it a political body. Eg. France and all its colonies
WHAT ARE THE ARGUMENTS AGAINST JUDICIAL REVIEW BEING DEMOCRATIC?
1. People argue that judicial review is not democratic since judges are not elected.
2. They also argue that the power given to judges are subversive to the peoples vigilance ( that is the people think that the judges are doing all the policing)
WHY PEOPLE SAY JUDICIAL REVIEW IS DEMOCRATIC
1. They say the judges have no power
2. There is nothing in democratic institutions that everybody who makes important decisions in the state should be elected
WHAT IS THE EFFECT OF A DECISION THAT A COURT WHICH HAS A POWER THAT A CERTAIN PIECE OF LEGISLATION IS UNCONSTITUTIONAL?
1. The invalidation takes effect at the time the ruling is made
2. Some countries draw a distinction between criminal legislation: retrospective and civil legislation : prospective
WHAT ARE THE THEORIES IN DETERMINING ISSUES OF CONSTITUTIONAL VALIDITY?
1. Activism: Judges when exercising power should assume the posture of activist, challenging the status quo.
2. Self-restraint: Judges should be very slow to pronounce the decisions of other players as unconstitutional( this is the opposite of activism).
3. Original Intent theory: Where the judges depend on what the framers of the constitution had. It is not easily to determine the intention of the founding fathers. Their intentions could vary what has been used in the constitution.
4. Language of the text of the constitution: Here judges may consign themselves to the language of the constitution when interpreting it. This has the same problem like the original theorem because language is dynamic.
5. Structure of the constitution: This is the organization of the articles of the Constitution. It suggests that a basic philosophy is that public power should be subject to limitation
6. Judicial precedent: A long – standing principle should not be lightly thrown overboard. If several generations of judges have said that something is a principle, very rarely will that principle be overturned. Judges are more likely to reconcile constitutional provisions.
JUDICIAL REVIEW IN GHANA
Judicial review has explicitly been provided for in the 1992 Constitution under Articles 2(1) and 130. Unlike the United States, there are no huddles towards the invocation of the power of judicial review located or vested in the Supreme Court.
In NPP V Attorney General (1997-1998) 1 GLR 378-461 (CIBA CASE),the plaintiff, a political party registered as a body corporate, in an action against the Attorney-General invoked the original jurisdiction of the Supreme Court under article 2(1) and 130 of the Constitution, 1992 for a declaration that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) was inconsistent with and a contravention of articles 21(1)(e), 35(1) and 37(2)(a) and (3) of the Constitution, 1992 and consequently void. The Attorney-General, however, raised a preliminary objection to the action on the grounds that only a natural person could bring an action under article 2(1) of the Constitution; and articles 35(1) and 37(2)(a) and (3) which were part of the provisions of the Directive Principles of State Policy under chapter 6 of the Constitution, 1992 were not justiciable. Furthermore, the Attorney-General contended, inter alia, on the merits that since PNDCL 312 had been enacted upon the petition of the associations specified in the schedule to the Law to enable them to freely operate under the umbrella of a council similar to the Trades Union Congress, it was not in breach of their right to form or join any association of their choice under articles 21(e) and 37(2)(a) of the Constitution. Commenting on the issue of locus, Bamford Addo, JSC as she then was held;
“It is evident from this passage that a very wide effect was intended to enable all persons to resort to judicial review for the enforcement of the Constitution, 1992. Therefore under article 2(1) of the Constitution, 1992 other than the citizenship require¬ment, no limitation is placed on the nature of persons who may invoke the original jurisdiction of the Supreme Court. If this be the case then it seems to me that there would be no logical reason for restricting the resort to the original jurisdiction of this court to only natural persons. On the contrary, it would be more beneficial and in accordance with the intention of the framers of the Constitution and in the public interest to open the door widely to permit both natural and legal persons, like the plaintiff, access to the court. I would think that corporate bodies by reason of their important place in society are most suited both financially and otherwise to undertake the defence of the constitutional order by resort to judicial review when the constitutional order is being threatened.”
There is also no requirement of proof of existence of personal interest. Judicial review can be requested even where the applicant does not have an interest in the case (i.e. there is no locus standi).
In the case of Agyei Twum v Attorney General (2005-2006) SC GLR 732, the plaintiff was a private Ghanaian citizen who was not related in any way to the Chief Justice, George Kingsley Acquah and was not affected in any way by the president’s inaction but in the interest of justice sued under article 2 (1) of the constitution, 1992.
In Tuffour v AG the SC held that a party coming under Article 2(1) need not have any personal interest for the said party’s interest is with the constitution 1992.
See also Sam (2) v Attorney General (2001) SC GLR 305 : In this case, the plaintiff, who was a Ghanaian citizen, brought action in the SC against the AG for a declaration that section 15 of the Divestiture of State Interests (Implementation) Law, 1993 was inconsistent with particular provisions of the 1992 Constitution and therefore void. When the AG raised a preliminary objection to the plaintiff’s action on the ground that the plaintiff had no personal interest in the outcome of the case, the SC dismissed his objection. The Court drew a distinction between actions to enforce the Constitution under article 2(1) and actions under article 33(1) for redress in relation to a contravention of a fundamental human right or freedom. It held that in actions under article 2(1) , the plaintiff did not need to show a personal interest. All citizens of Ghana were under a duty imposed by articles 3(4) and 41(b) to defend and uphold the Constitution. Accordingly, when a citizen brings action to challenge the constitutionality of any act or omission or enactment under article 2(1), he or she is merely fulfilling an obligation placed on him or her by the Constitution.
“To sum up, the general rule is that any person, natural and artificial, may sue and be sued in the courts under article 2(1) f the Constitution, 1992 but they must be citizens who are seeking the interpretation of the Constitution 1992 and its eventual enforcement, as plaintiff is seeking to do in this case.”
The SC’s view of standing to sue under article 2(1) was explained in the following terms by Justice Ocran in Agyei Twum v Ag : “The purpose of the provisions in article 2(1) of the Constitution is to inculcate in the citizens of the country, an interest in the enforcement of the Constitution, by sparing them the traditional technicalities as to who could bring a suit.”
ADMINISTRATIVE JUSTICE IN GHANA.
Unlike UK, where it is said that the exercise of the power of judicial review over administrative bodies are discretionary, in Ghana, under Article 23 of the 1992 Constitution, administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court of law. Thus in Ghana, administrative bodies are limited by;
1. Express provisions of their enabling Acts and
2. Rules of fairness and reasonableness.
WHAT ARE THE DIFFERENCES BETWEEN APPEAL and JUDICIAL REVIEW?
Appellate court has the power to review a case and to substitute its own decision for that of the lower court. Appeal may be made on both the law and the facts of the case, so that a full re-hearing may take place. Judicial review by contrast, is concerned solely with the manner in which the decision-maker has applied the relevant rules. It is thus procedural in nature. It is not for the court to substitute its judgment for that of the decision-maker to which powers have been delegated, but has kept within the rules laid down by statute and common law or the constitution.
WHAT IS THE IDEA of POLITICAL QUESTION and JUSTICIABILITY?
There are matters which the court, mindful of the doctrine of separation of powers, consider to be purely of political nature and therefore reluctant to review. Matters such as the exercise of prerogative of mercy or issues of national security, and matters of policy may be regarded as non-justiciable. Thus, in the case of Nottinghamshire County Council v Secretary of State for the Environment (1986) AC 240, it was held that the court should not intervene to quash guidance drafted by the Secretary of State on the authority of Parliament, setting limits of public expenditure by local authorities, unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power. These are matters of political judgment for him and for Parliament.
What is Public Law Body?
Judicial review under this category deals with public law bodies and the question has always been of how to identify a public body. In R v Panel on Take-Over and Mergers, ex parte Datafin plc, the body, which was subject to review exercised no statutory or prerogative powers and was not even based on a private contract or constitution. The court held that its functions were amenable to review of the panel’s enormous de facto power to take decisions affecting the public and crucially, the fact that there was no other means by which those affected by the decisions of the panel could have challenged them in the court. The decision was followed in R v Advertising Standards Authority Ltd ex parte The Insurance Service pls (1989) The Times 14th July. The ASA Ltd had investigated and upheld a complaint that the Applicant’s insurance company’s advertising leaflets were misleading and amounted to a breach of advertising standards. In granting the company’s application for judicial review, the court indicated that the ASA exhibited similarities with the agency in Datafin and that though it had no statutory or common law powers, its functions brought it under public law.
This case may be contrasted with R v Football Association ex parte Football League (1993) 2 All ER 833 wherein the Football League sought to form a Premier League and introduce consequent changes to its regulation. The Football League had a contractual agreement with the Football Association whereby it was permitted each year to operate the league. The Football League contended that the Football Association was amenable to review because it exercised monopolistic control over the game and controlled rules governing it. Dismissing the application, it was held that the Football Association was not discharging functions of a governmental nature and there was no evidence that its functions would be exercised by a governmental body if it did not exist.
To identify a public body, you have to look for:
a. Whether it has a statutory or common law duty,
b. What functions does it perform and
c. Inadequacy of legal controls over its actions.
WHAT ARE THE GROUNDS FOR JUDICIAL REVIEW?
There are 2 main grounds namely
1. Breach of statutory requirements and
2. Decision reached in an unreasonable manner or in disregard of the rules of natural justice.
Another ground which has recently emerged is the Concept of Proportionality, which confines the limits of the exercise of power to means which are proportional to the objective to be pursued. This doctrine has taken roots in the US and Canada. Even though in the matter of R v Home Secretary ex parte Brind(1991) 1 AC 696, the House of Lords was not prepared to accept that the concept represented a separate and distinct head of judicial review. However, UK judges appear to agree that while proportionality is not part of the English law, it may be used to determine whether a decision has been irrational or not. For example in R v Barnsley Metropolitan Borough Council ex parte Hook (1976) 1 WLR 1052, a market stall holder had his license revoked for urinating in public. Lord Denning MR quashed the decision, partly on the basis that the penalty was disproportionate to the offence.
PROVING UNREASONABLENESS
Relevant and Irrelevant Considerations: If the agency acted on the basis of irrelevant considerations, or it can be shown that relevant considerations were ignored, then, the decision will be unreasonable. The basic principle was stated by Lord Esher MR in R v St. Pancras Vestry (1890) 24 QBD 371
“the decision making body must fairly consider the case before it and not take into account any reason for their decision which is not legal. The agency takes into account matters which the court consider not to be proper for the exercise of their discretion, then in the eyes of the law they have not exercised their discretion”
Agencies should always bear in mind the purpose, usually referred to as the intendment of the enabling Act from which it derives its powers.
Ulterior Motives:
R v Hillington LBC, ex parte Royco Homes Ltd (1974) QB 720, the Respondent authority granted outline permission for houses subject to conditions such as that the house to be built should be occupied first by persons on the authority’s housing waiting list etc. It was held that the conditions were imposed to suit an ulterior purpose, a purpose ulterior to the duty of the council as a planning authority, as its authority was to ensure that if a private developer develops its land, he should have to use it in such a way as to relieve the council of a significant part of its burden as a housing authority. The conditions were ultra vires and brought the whole planning permission down.
In Bilson v Apaloo (1981) GLR 15, the plaintiff filed a writ against the then Chief Justice, Justice Apaloo for a declaration to quash the judgment of the Court of Appeal sitting as the Supreme Court in the case of Tuffour v AG (1980) GLR 637, on the grounds inter alia, that the five learned judges who constituted the court did not constitutionally hold valid nominations to sit in the said suit since the Chief Justice, the defendant, who had empanelled the court acted in contravention of articles 114(5), 121(2) and section3(1) of the transitional provisions of the 1979 constitution and that it was judicially improper for the five judges constituting the panel of the court appeal to accept the invalid nomination to sit on the said suit. At the hearing counsel for the plaintiff raised a preliminary objection to the composition of the Supreme Court on the grounds that two members of the panel hearing the case should not sit as members of the Supreme Court since they had also sat at the Court of Appeal in the Tuffour case. He further submitted that the natural justice rule against bias would be infringed if the two judges sat as judges in their own case.
In dismissing the preliminary objection, the court held that the rule of natural justice (nemo judex in causa sua) also known as the rule against bias arose in two ways, firstly, where the adjudicator was disqualified because he had direct financial or proprietary interest in the subject-matter of the suit: and there was a real likelihood that the adjudicator would be biased in favour of one of the parties. The court also held that in the instant case, natural justice had to yield to necessity since otherwise it would be impossible to constitute a quorum of five justices of the Supreme Court of the hearing of the case under Article 115(2) of the constitution. Further the court said that apart from considerations of necessity, it was incontrovertible that the issues raised by the parties were predominantly issues of law, the adjudication of which would not pose any special problems for the judges of the court performing, in the words of their judicial oath, the functions of their office without fear or favour, affection or ill-will and upholding the constitution and the laws of Ghana.
See also Akuffo-Addo v Quarshie-Idun (1968) GLR 667 at 674.
Ridge v Baldwin
Council for Civil Service Union v Minister of Civil Service
Inkumsa v Jiagge (2 G&G) 313
Darkwah v the Republic
HOW JUDICIAL REVIEW OPERATES IN MILITARY REGIMES?
The question has been often asked whether there is the possibility of judicialreview during military regimes. Military governments, usually after assuming the reins of government suspend or abrogate the constitution either in part or whole. However, in most cases, the judiciary is allowed to continue the exercise of the judicial power which it enjoyed under the suspended or abrogated constitution subject to provisions in the Establishment Proclamations of the military regimes.
The judiciary has had various opportunities in answering the above question. For instance, in Fattal and Another v Minister for Internal Affairs and Another, the two plaintiffs, Lebanese by birth, acquired Ghanaian citizenship by naturalization under the then Ghana Nationality Act of 1971, Act 361 in 1973 and 1976. In August 1978 the Supreme Military Council (SMC) passed the Ghana Nationality (Amendment) Decree, SMCD 172, which revoked the acquired citizenship of the plaintiffs. Deportation orders were then issued for the two by the Minister for Internal Affairs. In 1980 the plaintiffs invoked the original jurisdiction of the Supreme Court under the 1969 constitution (article 2 (1), seeking inter alia that SMCD 172 purporting to revoke their citizenship without a court order was ultra vires the powers of the SMC as being contrary to the National Redemption Council (Establishment) proclamation and the 1979 constitution and its continued operation was inconsistent with or in contravention of chapters 5, 9 and 12. The court in a majority decision dismissed the action and held inter alia that since 1966, military governments in Ghana had always reserved to themselves the legislative power to either enhance or curtail the judicial power vested in the courts. In the absence of a written constitution that delimited the powers of the various organs of state, a military government was at liberty to do what it likes by Decree which had the force of law. In the absence of constraint, restrictions or limitations on the legislative power, the laws enacted by the legislature, should be enforced by the courts. The NRC by its Proclamation 1972, made the judicial power guaranteed by the 1969 constitution, and indeed all other existing enactments subject to Decrees passed by the council. The Court further stated that although SMCD 172 might appear unjust, unreasonable and even autocratic, yet it was not within the province of the Supreme Court to strike it down merely because it was an unjust or unreasonable law. The days when courts of law could embark on such an exercise were over. When SMCD 172 was enacted, there was no constitution holding the legislative power in leash and no court could have declared SMCD172 invalid, null and void. The Supreme Court could nullify an existing law only if at the time it was passed it was invalid or its continued existence conflicted with the constitution. The court was supreme only within the bounds of the constitution. The court has not within its environment nuances of supremacy, sovereignty or omnipotence. It could not redress injustices perpetrated by military regimes in the past under Decrees regularly enacted by them.
In his dissenting opinion, Taylor JSC said that the Supreme Court in one single sentence of the majority achieved a self-imposed limitation on its jurisdiction contained in the clear unmistakable and peremptory provision of article 1 (2) when the majority held,
“the court can nullify an existing law only if at the time it was passed, it was invalid”.
This is so unnecessary for the decision that it can only be hoped that this purported restriction of the jurisdiction of the Supreme Court will, without doubt, be studiously ignored.
WHAT ARE THE REMEDIES GIVEN UNDER JUDICIAL REVIEW?
Remedies offered under judicial review are specified under article 33 of the constitution, 1992. These remedies are; certiorari, prohibition, mandamus which is all termed as prerogative writs and habeas corpus.
• Certiorari
This is an order from a court requiring a decision or an action which has been taken by an administrative body or official or a quasi-judicial body to be brought up to the court and be quashed.
• Prohibition
This is an order seeking to prevent an administrative body or official or an inferior court or a quasi-judicial body from exceeding its jurisdiction or from making a decision or taking an action which may warrant certiorari.
• Mandamus
When a public body or official or an administrative body or a quasi-judicial body are supposed to exercise an authority or duty, but that body or official has failed to execute the authority or duty, mandamus may be issued to that body or official compelling it to perform its function
• Declaration:
A statement of the legal position of the parties and is not accordingly a remedy per se. It states the position of the law. It also clarifies and confirms the law. “A declaration order cannot be enforced on its own but rights and remedies attendant on the declaration may be enforced through a separate action”.
WHAT IS THE ISSUE of CAPACITY – Locus Standi?
An applicant in an action for judicial review of an administrative decision must have a sufficient interest in the matter to which the application relates. The justification for the requirement is to limit challenges to administrative decision-making to genuine cases of grievance and to avoid unnecessary interference in the administrative process by those whose objectives are not authentic.
Reference may be made to Article 2(1) of the 1992 Constitution on the enforcement of the constitution and requirement of standing.