1.0 INTRODUCTION:
Judicial review
of administrative actions is perhaps the most important development in the
field of public law in the second half of this century. Judicial review is the
most potent weapon in the hands of the judiciary for the maintenance of rule of
law. Judicial review is the touchstone of the Constitution. The Supreme Court
and the High Court are the ultimate interpreters of the Constitution. It is
therefore the duty of the Court to find out the extent and limits of the power
of coordinate branches, viz limits. Judicial review is indeed a delicate task
assigned to the judiciary by the Constitution.[1]
In our work therefore we are going to discuss the filter mechanisms available
in respect of the application for judicial review in Tanzania.
1.1 MEANING OF JUDICIAL
REVIEW:
In the case of CHANDRA KUMAR vs. UNION OF INDIA[2]
judicial review was explained as a great weapon in the hands of judges. It comprises
the power of a court to hold unconstitutional and un enforceable any law or
order based upon such law or any other action by a public authority which is
inconsistent or in conflict with the basic law of the land
Judicial review is a High Court procedure
for challenging administrative actions.
It allows individuals, businesses or
groups to challenge in court the lawfulness of decisions taken by Ministers,
Government Departments and other public bodies. These bodies include local
authorities, the immigration authorities, and regulatory bodies and some tribunals. In the case of R V HM THE QUEEN IN COUNCIL, EX PARTE
VIJAYATUNGA, Mr Justice Simon Brown (now Lord Brown of Eaton Under
Heywood) observed that “judicial review is the exercise of the court's inherent
power at common law to determine whether action is lawful or not; in a word to
uphold the rule of law”.[3]
1.2 OBJECT OF JUDICIAL REVIEW:
The underlying
object of judicial review was underscored in the case of CHIEF CONSTABLE vs. EVANS[4], were the court observed that the main
object of judicial review, is to ensure that the authority does not abuse its
power and the individual receives just and fair treatment and not to ensure
that the authority reaches a conclusion which is correct in the eye of law.
2.0 MAIN BODY:
In as far as the
requirement of our question requires, in this part of our work we are going ton
analyse the filter mechanisms available in respect of the application for
judicial review in Tanzania.
The introduction
of procedural rules regulating applications for judicial review have become
very important to the contemporary world. The importance of reviewing these
rules has been recognised by the Jersey Court of Appeal in BURT V THE STATES OF JERSEY where Le Quesne JA stated that there was
a "dire need of review here if only to cope with the necessity for
expedition in determination by the Court of the validity of governmental
decisions which are under challenge." One possible
source of inspiration for court is the rules governing judicial review in
England. Judicial review in England is intended to be a speedy mechanism of
enabling courts to review the legality of actions of public bodies. There are
two stages, firstly, consideration of whether to grant leave, and secondly, if
leave is granted, the substantive hearing.[5]
The position is the same as that of Tanzania.
2.1 WHO MAY APPLY FOR JUDICIAL REVIEW:
One must
understand that the person applying for the judicial review must have the locus
stand and not a just mere busy body. The question of locus stand is different
from the question whether the petitioner is entitled to the relief as prayed by
him. The attitude of the court in the question of locus stand does not appear
to be uniform. They vary from country to country, court to court and case to
case. In some cases court have taken a very narrow view holding that unless an
applicant has suffered legal injury by reason of violation of his legal right
or legally protected interest, he cannot file a petition. The other extreme
view is that the courts may in their discretion issue a writ at the instance of
any member of public. A close scrutiny, however, reveals that neither of the
two extreme is correct.[6]
As a general
rule, in order to have the locus stand to file a petition, the petitioner
should be an aggrieved person. The aggrieved person is the one whose right has
been infringed. As per the modern view, the concept of aggrieved person and the
right duty pattern commonly found in private litigation has been given up. The
only limitation is that such person should not be a total stranger. In the case
of LUJUNA SHUBI BALONZI SR vs.
REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI[7],
it was observed that, “a person bringing a matter to court should
be able to show that his right or interest has been breached or interfered
with.”
2.2 WHERE DOES THE AUTHORITY FOR JUDICIAL REVIEW COME
There are different
laws, which give authority for applying the judicial review. Stating with the
Constitution[8]
under Article 108 recognized the
judicial review even does not expressly state for but the High court have the
inherent jurisdiction that is to say judicial review inclusive. Again, section 95[9]
provides for the judicial review. Section
2(2)[10]
provides for the judicial review which allows the application of the common law
where the circumstance of the country fits. Section 390[11]
also provides for the order of Habeas Corpus, Section 17 and 18[12]
provides also for the judicial review
2.3 FILTER MECHANISMS IN RESPECT OF APPLICATION FOR
JUDICIAL REVIEW IN
TANZANIA:
As we have
pointed out that the application for judicial review is not automatically
granted by the court. There are two stages, which the application is to pass
before it is granted. That is to say, leave stage and hearing stage. We are
going to consider each stage after another.
2.3.1 AT THE LEAVE STAGE:
Applications for judicial review may only be made in a public law
matter, that is in a case involving a challenge on public law grounds to the
actions or omissions of a public body. Special prerogative remedies have always
been available to control public bodies; these are the remedies of certiorari (to quash a decision), mandamus (to compel the
performance of a public duty) and prohibition
(to restrain unlawful action), habeas corpus (to compel the release
of unlawful detention), and quo warranto (simply means, what is
your authority). These remedies can only be sought by way of an
application for judicial review:
In this stage
the applicant has to seek leave from the High Court to file the application for
the orders. This application is done ex parte. This application for leave
is instituted by the chamber summons, which is accompanied by the statement of
ground and an affidavit. In this stage the court shall summon the Attorney
General to appear as a party, and if he does do so on the date specified in the
summons the court may proceed ex parte as per section 18(1).[13].
The section provides that, “where leave for application for an order of
mandamus, prohibition or certiorari is sought in any civil matter against the
government, the court shall order that the Attorney General be summoned to
appear as a party to those proceedings; save that if the Attorney General does
not appear before the court on the date specified in the summons, the court may
direct that application be heard ex parte. Therefore at this stage
the Attorney General is the necessary party wearing the cap of the respondent.
At this stage as
it was discussed in the case of KAHAMA
GOLD MINES vs. MINISTER FOR ENERGY[14]
by Mapigano, J, the applicant at this stage need do no more than showing
that there is a substantial or serious question to be investigated. The
applicant is required to establish the prima facie case before the prayer
for application of prerogative order is granted. The rationale is that the
court should be satisfied that the claim is not frivolous or vexatious.
2.3.2 AT THE HEARING STAGE:
If leave is
granted, then, at the substantive hearing, standing may be reconsidered to see
if that applicant should be granted relief on the facts of the case. In
practice, standing at this stage shades into consideration of the discretion to
grant or refuse relief, the courts asking whether the applicant’s interest
justifies the grant of relief.[15].
At this stage the application had to be heard on its merits and the Attorney
General is not the necessary party, in the case of SENZIA
ALPHONCE MBAGA VS THE CHAIRMAN ELECTION COMMISSION[16]
it was held that a part must be given an opportunity for hearing
3.0CONCLUSION:
T o wind up our
discussion, it is necessary to have a general rule that public law challenges
be brought by way of judicial review. In the majority of instances it will be
clear that a challenge is a public law challenge and that the speedy, affidavit
based procedure should be used for such challenges. Some flexibility, however,
needs to be built in for those cases where the applicant reasonably believed
that the matter was not a public law matter and allowing the case to
proceed would not harm or prejudice third parties or the needs of good
administration. A respondent/defendant would be entitled to raise the
appropriateness of bringing the challenge by ordinary action rather than
judicial review; the court would either allow the action to proceed or direct
that the matter be dealt with as if it had been begun by the judicial review
procedure thereby avoiding automatic discovery, oral evidence etc. A further
instance where flexibility is desirable is where the court is satisfied that
the claim ought to be allowed to proceed because it is just and convenient to
do so either because the claim raises issues of public and private law or for
some other substantial reason.
The discussion above shows that the application of judicial review
is not automatically granted by the court. There are two stages, which the
application is to pass before it is granted. That is to say, leave stage and
hearing stage. All these two procedures, we have discussed them at large in our
work.
[1] Thakker, C.K, Lectures on
Administrative Law
[2] (1997) 3 SCC 261 (292): AIR 1997 SC 1125
[3] http/www.parliament.uk/commons/lib/research/rp2006
[4] (1982) 3 All ER 141
[6] Thakker, C.K, Admnistrative Law, 3rd Edn.
[7] (1996) TLR 203
[8] United Republic
of Tanzania
[9] Civil Procedure Code [Cap 33 R.E 2002]
[10] Judicature and Application of Law Act [Cap 358 R.E 2002]
[11] Criminal Procedure Act [Cap 20 R.E 2002]
[12] The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act
[Cap 310 R.E 2002]
[13]. Ibid
[14] Miscellaneous Civil Course no. 127 of 1989, High Court of Tanzania
[15] Loc cit (fn no 5)
[16] [1996] TLR 102
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