It is the responsibility and obligation of every patriotic Nigerian to ensure that the supremacy of our constitution is essential in the effective running of our fledging democracy. Thus where there are apparent breaches of our constitution we as citizens should do all within our legitimate constitutional powers to redeem these breaches. Understanding our constitution, its workings and operations is sin qua non in any democratic society.
A public body acts unlawfully if it acts in a way which is illegal failing to apply the law relevant to a decisionirrational an obviously illogical or manifestly absurd decision or procedurally unfair following the wrong procedure for making a decision.
JR can be used to protect the individual by controlling the use of executive power. However it means the unelected judiciary is checking and controlling executive action, which raises questions about democratic accountability. The High Court is exercising supervisory jurisdiction over public bodies as part of its constitutional function of ensuring that public bodies do not act unlawfully.
However, as Parliament has given power to the public authority the court cannot substitute a decision for own view what is fair and reasonable on the merits Evans.
Dicey argued that individual liberty was protected solely by private law and that public law limited parliamentary supremacy. He put forward that Parliament gives the executive power and it is the duty of courts to uphold these powers, even if in practice, individual liberty is infringed.
However, the modern view is that when Parliament confers power there is implied intent that it is exercised legally, rationally and fairly. So if the implementation infringes an individual's fundamental right then a public interest justification must be shown, Presumptions law and ouster clauses example the Human Rights Act makes it unlawful for public body to infringe a Convention right.
Parliamentary Supremacy By reviewing the acts and decisions of public bodies, to determine whether they have exceeded the powers passed to them by Parliament, the courts are arguably upholding the will of Parliament and its supremacy. TRS Allan argues that JR and parliamentary sovereignty have the same moral foundation and both legitimise the exercise of power.
JR can also be criticised as undermining parliamentary supremacy especially the attitude of the courts in interpreting statute ouster clauses and in developing grounds for judicial review.
However, even since the GCHQ case which dealt with regulation of the Civil Service, some areas remain clearly non-justiciable areas for the courts, for example in Gentle the courts would not consider the government's decision to refuse to hold a public inquiry into the lawfulness under international law of the UK's involvement in the Iraq war.
InLord Steyn noted the doctrine of parliamentary supremacy was a construct of the common lawso in extreme circumstances courts can qualify the principle to prevent Parliament from legislating contrary to the Rule of Law. Lord Hope emphasised this saying: Rule of Law Lord Brown stated: The procedural fairness grounds for JR recognise that open and fair hearings and the absence of bias are necessary for the correct application of the law and these are essential components of the Rule of Law.
The Rule of Law also has substantive content. Essentially, a breach of the Rule of Law, manifested through breach of one of the more particular principles of judicial review, can lead to annulment of the measure.
Separation of Powers The Separation of Powers doctrine requires each branch of state to be of equal status so that one can check and balance the powers of another. JR is a system which ensures that the executive does no more than the legislature has empowered it to do. The courts are restricted to a supervisory role in JR because changing an executive decision is beyond their remit.
That is why remedies under the Senior Courts Act are limited to quashing a decision, preventing a decision from being made in the future, or forcing the decision-maker to use the powers he has been given.
Ouster Clauses Constitutional issues with JR are apparent when looking at ouster clauses, which can be inserted into legislation to attempt to prevent review in legal proceedings.
Parliamentary Sovereignty requires the judiciary to uphold the ouster clause and exclude themselves from reviewing the decision in terms of its legality. However, the courts have construed these clauses restrictively, applying the presumption that Parliament does not intend to exclude review by the courts, even when the plain words of the statute suggest otherwise.
In Anisminicthe House of Lords held that an ouster clause may protect a valid decision but not a nullity. The decision is contrary to doctrine Parliamentary Supremacy but arguably upholds the Rule of Law court's inherent jurisdiction. Another argument is that under the Separation of Powers, as the three branches of State have equal powers, the executive should not be able to deny the judiciary their function.
The judiciary has shown some restraint in relation to ouster clauses which operate after certain time often 6 weeks. Here the presumption against exclusion not operate and the courts recognise the advantages of prompt claims so the clause can be effective outside the prescribed period Ostler.
The issue of ouster clauses highlights the tensions between the constitutional doctrines which underpin the unwritten UK constitution. This article can be found online at www.An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function.
against exceeding territorial nexus - Presumption against ouster of jurisdiction of courts - Presumption against changes in common law - Presumption against including what is inconvenient or unreasonable - Presumption against intending injustice or absurdity -.
The distinction between jurisdictional and non-jurisdictional errors of law and the effectiveness of ouster clauses against non-jurisdictional errors of law is exemplified by the cases of Re Application by Yee The Court held that a distinction could be drawn between a total ouster clause and a partial ouster such as the one in question.
Legal presumptions are of two kinds: first, such as are made by the law itself, or presumptions of mere law; secondly, such as are to be made by a jury, or presumptions of law and fact.
st. Ouster clauses in English Law by Zoe Kirk-Robinson states that an ouster clause is a provision in a Parliamentary statute which excludes certain actions and decisions from judicial review; in the interests of the smooth administration of justice.
In contrast, Singapore cases suggest that ouster clauses cannot prevent the High Court from exercising supervisory jurisdiction over the exercise of executive power where authorities have committed jurisdictional errors of law, but are effective against non-jurisdictional errors of law.