Understanding judicial review

Gordon Robinson, Contributor

It seems the misunderstanding regarding the origins and purpose of judicial review is more widespread than I thought.

In my column on the DPP's consistent failure, I made a passing reference to my opinion that judicial review, as it was invented in Britain as a protection of the subject by the monarch against the arbitrary exercise (by administrative tribunals) of the monarch's delegated authority, had no place in Jamaica or any independent nation governed by a written Constitution.

A reader, describing himself as 'Robert Collie', posted the following online comment:

"RE the judicial review point, I'm wondering if Gordon is being facetious or just negligent in advising that judicial review not being useful in a constitutional democracy. Judicial review is far from being an invention of British constitutional law but rather has its effective genesis in the American constitutional tradition arising from Marbury v Madison. It was adapted by the British as a way to reign [sic] in executive power and remains the tool used in most common-law jurisdictions to keep in check executive abuse. Disappointing legal nonsense from a senior lawyer."

Oh, woe is me. I'm definitely getting too old. It looks like it's time for me to pack it in. Except that I can assure young Robert that the British have adapted NOTHING from the Americans. They would rather slit their throats. It's the Americans, despite their struggles for independence from the British - which they've trumpeted by way of their torture of the language and spelling (e.g. 'nite' or 'honor') - who repeatedly copy/adapt British culture.

So 'Steptoe and Son' became 'Sandford and Son'; 'Love Thy Neighbour' became 'All in The Family'; 'The Upper Hand' became 'Who's The Boss?'. I could go on and on, but even the pretence of originality has been cast away with the latest bit of flattery when 'The Office', created, written and directed by Ricky Gervais, became 'The Office', adapted by SNL's Greg Daniels starring Steve Carell.

Young Robert seems to be looking at the English law regarding judicial review with the aid of advanced cataracts. It has nothing whatsoever to do with Marbury v Madison, which established the ability of US courts, especially the Supreme Court, to review statutes to find whether or not they exceed the powers given to their lawmakers by the US constitution and are accordingly to be struck down as unconstitutional.

English origin

On that note, not even in that regard could Marbury v Madison 'first' the British because, almost 200 years before Marbury, the idea courts could nullify statutes originated in England with Chief Justice Edward Coke's 1610 opinion in Dr Bonham's Case, 8 Co. Rep. 107a (cited, incidentally, with justified disapproval, in Marbury v Madison).

That decision arose under a statute enabling the London College of Physicians to levy fines against anyone who violated their rules. The college accused a doctor of practising without a licence and fined him. Coke C.J. found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case".

Although it was impossible in England for a court to strike down an act of Parliament (there's no written constitution in England; Parliament is supreme; so every act of Parliament has constitutional effect) and Dr Bonham's case was soon enough discredited (with a little help from the 1688 Glorious Revolution), it would form a rough and ready basis for British law's development of judicial review over 300 years later as one of the rules of 'natural justice' used by British courts to strike down orders of administrative tribunals is if the tribunal acted as a judge in its own cause (bias).

The fundamental difference between Marbury v Madison judicial review and the British version is that, in Marbury v Madison, the judicial review was of a statute, to discover if it was unconstitutional. In Britain, judicial review is of administrative action, to see whether an inferior tribunal has exceeded its jurisdiction. These are two completely different legal creatures, and ne'er the twain shall meet.

What may have confused young Robert is that, in Marbury v Madison, the petition was for an order called 'mandamus' (very different to the English Prerogative Writ of the same name) to force the then secretary of state to deliver to Marbury his documents of appointment as a JP, which appointment had been made by President John Adams. The court found that Madison's withholding of the documents was illegal but refused to grant the petition because, in reviewing the statute that permitted Marbury to bring the action, it was held unconstitutional.

British import

It's very much the British version of judicial review that we imported into Jamaica, which is not to be confused with the ability of Jamaican courts, as set out in the Privy Council's decision in Hinds v R, to also review Jamaican statutes (à la Marbury v Madison) to ensure that they don't violate the provisions of our written Constitution.

It's that very ability to review statutes vis-à-vis the Constitution which can be extended to the review of every action of any agent of the State vis-à-vis individual rights enshrined in the same Constitution which leads me to opine that the British version of judicial review we've imported, adjusted and fine-tuned to now include private law remedies like injunctions and declarations, is unnecessary and itself unconstitutional.

Remember, the 'judicial review' to which I refer is the review of administrative action, NOT the review of statutes. In that regard, it became necessary circa World War II in England to do something about the sudden proliferation of administrative tribunals exercising delegated authority properly exercisable by Her Majesty's Cabinet.

Because there's no written constitution in England; because the UK Parliament is supreme; because there are no fundamental human rights properly so called, only loyal and obedient subjects of the Crown, a system had to be developed to protect ordinary subjects against the arbitrary exercise of this delegated authority by other ordinary subjects.

So the judicial system developed whereby the courts would review such action not for the purpose of judging its rightness or wrongness as if on appeal but to ensure that the PROCESS was fair. If a process was found unfair, writs were issued, known as prerogative writs (because it was Her Majesty's Prerogative to deal with the problem and not, strictly speaking, the jurisdiction of the courts which can't interfere in the normal way with anything done under an act of Parliament), to remedy the situation.

These prerogative writs, namely certiorari (to quash an order made by an unfair process), prohibition (to prevent administrative action from taking place where, if allowed to proceed, the tribunal would be exceeding its jurisdiction) and mandamus (to compel a statutory authority or State agent to do his/her public duty) do not exist in the United States. They never have. In Marbury v Madison, the order being sought was also called 'mandamus', but it was not in the nature of a prerogative writ but a judicial remedy obtained by normal petition to the courts. The 'judicial review' undertaken in that case wasn't a review of Madison's conduct to see if it was unfair (it was) for the purpose of deciding whether or not to order the mandamus but of the Statute permitting the petition for the purpose of testing its constitutionality.

Her Majesty's judges began to
develop 'rules' with a view to finding out whether an administrative,
yet quasi-judicial process was fair or unfair. These were, in large
part, known as rules of natural justice (again, because they did not
originate in any statute but in the protective arms of Missus
Queen).

Judges would scrutinise the procedures of an
administrative tribunal to see if the aggrieved subject was given an
opportunity to be heard (what he said if the opportunity arose was
irrelevant); details of the charges against him; and so on. Did the
tribunal concentrate on the relevant matter, or did it exceed its
jurisdiction by looking at other extraneous
matters?

Rules of procedure were developed, including a
two-tiered approach to seeking the remedy, which involved a preliminary
proceeding whereby the subject needed to ask for leave to apply for
judicial review. Neither in Marbury v Madison nor
ever since has any petitioner/claimant ever required leave to commence a
lawsuit for American 'judicial review' using the original jurisdiction
of any court.

Eventual remedy

All
judicial systems have processes whereby proposed appellants to the
highest court must first seek 'leave to appeal' but never to start a
private lawsuit against anyone in a court of first instance. Because the
eventual remedy in Britain is, at least in theory, Her Majesty's
prerogative, judges needed to ensure that the case to be brought fell
within the narrow framework of a judicial review application and, for
example, wasn't one for which an ordinary common-law remedy was
available.

I can't stress too often that the need for
judicial review, as we know it, arose in England because of the absence
of a written constitution and the need, in that context, for the
'rights' of subjects to be protected from arbitrary action which, in
another country, would have been unconstitutional. In Britain, subjects
must depend on the largesse of the Sovereign to protect their 'rights'.
Elsewhere, citizens' rights are enshrined in and protected by written
constitutions.

In Jamaica, if an administrative
tribunal should act in breach of what we know to be the rules of natural
justice, it would, in my opinion, also be breaching the fundamental
rights of the citizen as enshrined in our Charter of Rights and be
subject to constitutional action.

In Jamaica, we don't
need 'judicial review', properly so called. It's an anachronism. If we
weren't so bound and determined to copy everything British nearly 51
years post-Independence, we'd long ago have woken up to the farcical
nature of Jamaican citizens applying for Her Majesty's 'prerogative'
remedies and banished them from our legal
landscape.

But that would mean we believe we're
independent and serious about developing an indigenous jurisprudence. It
would mean applying common sense. But, that's just my opinion. It may
be nonsense, but, if so, it's my nonsense, and I'm rather proud of
it.

Peace and love.

Gordon Robinson
is an attorney-at-law. Email feedback to columns@gleanerjm.com.