ADMINISTRATIVE LAW2

(EXCLUSION OF JUDICIAL REVIEW-Constitutional ouster clauses)

Constitutional ouster clauses
• As we have seen judicial review may be excluded by invocation of constitutional ouster clauses.
Constitutional ouster clauses are provisions or clauses found in the constitution. The effect of these
clauses like statutory ouster clauses is to block the supervisory role of the courts over public
functionaries. One of the moot questions is whether the courts have any power to override a
constitutional provision that ousts them, remember the courts are a creature of the constitution.
Some people argue that the courts have no mandate whatsoever of overriding a constitutional
prescription while other argue the clearest constitutional provision cannot take away the inherent
power of judicial review.
• There are basically three schools of thought to the application of constitutional ouster clauses. The
first school of through is the one espoused by the likes of Dr.Basu (as he then was) in his famous
book entitled the constitution of India. According to Dr.Basu the mandate of the courts is to interpret
the law and to give effect to the true intension of the law maker . According to him, the constitution is
a supreme law which must be interpreted and given its face-value interpretation. He says the
constitution being the supreme law must be respected in particular by the courts which are a
creature of the same constitution. You will no doubt realise that Dr.Basu is an academic and his
interpretation of constitutional ouster clauses is indeed an academic one.
• The second school is the one espoused in a number of judicial decisions.
According to this school constitutional ouster clauses must be respected
unless there are strong and compelling reasons. See the case of
Harrikisoon V AG of Trinidad and Tobago 1980 AC 265 and case of
Thomas V A.G 1982 AC113 at 135. This school of thought seems to
support the first school of though (face-value approach), however a
closer look at this approach leads to a conclusion that even
constitutional ouster clauses are reviewable when there are strong and
compelling reasons, indeed any violation of the constitution would be a
strong and compelling reason. It can therefore be concluded that this
school of though only pays lip service to non reviewability of
constitutional ouster clauses
• The third school of though known as the half way house approach was espoused in the case of
Kila Wari V Ramoi 1986 PNGLR 112. In this decision the court drew a distinction between the
exercise of power by a head of state and the advice upon which the decision or exercise of power
was based. This decision concluded that where the constitution prescribes that the decision of a
head of state cannot be challenged indeed it is unchallengeable. It goes further to say what is
challengeable or reviewable is the advice upon which the decision or exercise of power is
predicated. Like with the second school of thought, ex facie the decision of the head of state
looks insulated against judicial review or intervention but upon closer look if you successfully
challenge the advice to the extend that it collapses then the decision itself will collapse. It can
safely be concluded that this approach also pays lip service to constitutional ouster clauses.
• The second and third schools of approach are in one direction that constitutional ouster
provisions are reviewable. They all go to show that however clear a constitutional provision may
be that seeks to protect certain acts or decisions the courts will at all times jealously guard
against any erosion of their inherent power of judicial review. Like we said, they are
distinguishable from the first approach of Dr.Basu which is more of an academic approach
Conclusion
• If you look at the trend of judicial decisions, it is clear that the courts have at all times protected any
invasion of their power to be watch dogs over administrative functions. In the case of R V Medical
Appeals Tribunal ex.p. Gilmore (supra)
“… the word ‘final’ is not enough. That only means ‘without appeal’. It does not mean ‘without recourse to
certiorari’. It makes the decision final on the facts, but not final on the law. Notwithstanding that the decision is by a
statute made ‘final’ , certiorari can still issue for excess of jurisdiction or for error of law on the face of the record”.
• In Harrikisoon V AG (supra) the court fortified its decision as follows
“… the court would be acting improperly if a perfectly clear ouster provision in the constitution of a country which is
its supreme law is treated with little sympathy or scant respect, or is ignored without strong and compelling reasons”
• what is clear is that whenever a court is faced with interpretation of an ouster provision the court will
at all times surreptitiously circumvent such a provision and ultimately find its way into reviewing such
a decision. This approach is encapsulated in the words of Professor Wade as follows
“the harder draftsmen strive to devise judge-proof legislation, the more judges show determination and ingenuity in
extending and refining grounds of judicial review. Legislation deliberately designed to cut down the powers of the
courts tends, paradoxically, to lead to their expansion” Wade, Aministrative Law (6th edn.) Ch.19
Conclusion
• It is instructive to note that control by the courts seem to be unimpaired by the ouster clause, no
matter how ‘sweeping or encyclopaedic’. Among the grounds on which ouster clauses have been
dishonoured by the courts are:
i. The improper composition of a tribunal,
ii. Exceeding legitimate scope of functions,
iii. Absence of locus standi,
iv. Non-fulfilment of a condition precedent,
v. Deviation from prescribed procedure,
vi. Contravention of the rules of natural justice,
vii. Fraud,
viii. Wrong questions,
ix. Improper purposes and irrelevant considerations; and
x. Insufficiency of evidence.