1 JUDICIAL REVIEW: EMERGING AREAS OF CONCERN     PAPER PRESENTED AT JUDGES’ SEMINAR - BY HON. MR. JUSTICE PHILLIP MUSONDA - 28TH JUNE – 30TH JULY 2011 AT LAKE SAFARI LODGE, SIAVONGA

2 INTRODUCTION The problematic areas in Judicial Review are both at leave and substantive hearing stages. Can leave be granted when the intention is to halt the exercise of statutory functions i.e. police investigations?. Can leave be granted when the action against whom stay is being sought has already taken place or can a stay be granted when there is no demonstratable irreparable harm?. Can leave be granted when there is no sufficient interest?. At substantive stage what type of evidence is required?. Can a court substitute its own opinion with that of a public officer or governmental agency clothed with the discretion to act or put simply, can a court take a subjective view?. Can the court determine the matter on the merits?. These are the often troubling questions in judicial review. This is the process which has been seriously misunderstood. The overriding objective of judicial review is not to disarm the decision-maker of discretionary or statutory power vested or lodged in that public officer. When the High Court is exercising ‘judicial review jurisdiction’, it only ensures that the discretionary power is not abused and that the decision-maker acts within the confines of the statutory provision giving him power. It is important for a judge to remember or be beholden to the factual and legal position that at leave and substantive hearing stages that: “the remedy of judicial review is to ensure that an individual is given fair treatment by the authority to which he has been subjected and that it is not the purpose of judicial review to substitute the opinion of the judiciary to that of the authority constituted by law to decide the matter or matters in question”.

3 First capture the very essence of power and whether that power has been exceeded, this is what comes out of the Supreme Court decision in Derrick Chitala V Attorney General. In R V Chief Registrar of Friendly Societies, ex parte New Cross Building Society ,Sir John Donaldson MR said: “On the society’s application for judicial review it is not for the court to consider whether the Chief Registrar’s decisions were “right” or “wrong”, or to entertain an appeal from them or to substitute the court’s discretion for his. The role of the court is to consider whether the Chief Registrar has exceeded his powers”. The court cannot be the judge of the merits of government policies. Nor is the court concerned with technical procedural irregularity or breach of natural justice as such, but with actual injustice or of real risk of injustice. The requirement that leave must be obtained is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it, were actually pending even though misconceived Per Lord Diplock in R V Inland Revenue Commissioners ex P National Federation of Self-Employed and Small Business Ltd.

4 Leave should be granted, if on the material then available the court thinks without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant. Inevitably in most cases the applicant will make-believe that he has an arguable case. Lord Scarman in the case of IRC V National Federation of Self Employed Small Business Ltd said: “Leave enables the court to prevent abuse by busybodies; by cranks and other mischief makers. I do not see any purpose served by the leave requirements. It is expected that at leave stage unmeritorious applications will be weeded out”. In R V Secretary of State for the Home Department, ex P. Angur Begum, the Court of Appeal held that the test to be applied in deciding whether to grant leave to move for judicial review is whether the High Court Judge is satisfied that there is a case fit for further investigation at a full inter partes hearing of a substantive application for judicial review. The burden of proof which lies on an applicant seeking to obtain liberty to apply for judicial review was described as “light” by Denham J. in her judgment in G V Director of Public Prosecutions

5 Lord Donaldson MR identified three distinct options available to the judge at the leave stage in this regard: where the facts were such as to clearly warrant further investigation at an inter partes hearing, then leave should be granted and where the facts clearly disclose that there is no arguable case, then the application for leave should be refused. But, Lord Donaldson also noted that there is on occasion a third, intermediate class of case, in which the judge is unable to determine whether or not there is in fact an arguable case on the materials before him. In such case, it was held, the right course was to summon the respondent to attend (hold an inter partes hearing) and make representations, although Lord Donaldson cautioned that this hearing should in no way resemble the substantive hearing which would take place if the applications for leave was successful. A CHECK LIST FOR THE APPLICANT FOR LEAVE An applicant, who wants to take out an application for judicial review under order 53 r 3 according to Professor Johannes Chan the applicant should ascertain that: (i) There is a decision which is susceptible of judicial review. The respondent was performing a public law function not a private function or the function of unicorporated association i.e. a political party see Sondashi V Miyanda (sued as Secretary General of MMD) infra;

6 (iii) There is at least one arguable ground: (ii) The decision is at least arguably an exercise of public power; (iii) There is at least one arguable ground: (a) Is there procedural impropriety? Did the decision-maker comply with the laid down procedure? (b) Is the decision illegal? It is illegal if it: (i) Contravenes or exceeds the terms of the power which authorizes the making of the decision; (ii) Pursues an objective other than that which the power to make the decision was conferred; (iii) Is not authorized by any power; (iv) Contravenes or fails to implement a public duty. (c) If the decision is wednesbury unreasonable. In Associated Provincial Pictures Ltd V Wednesbury Corporation. It was held that the impugned decision must be so outrageous in the defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Proportionality is emerging as a forth ground in Zambia. The Supreme Court dismissed the Attorney General’s appeal against deportation of Mr. Clarke on that ground see Attorney General V Roy Clarke SCJZ No.4 of 2008 at P.50.

7 The applicant has sufficient interest in making the application or is a busybody attempting to interfere in a case that does not concern it. The concept of “sufficient interest” is a mixture of law and fact. It means any connection, association or interrelation between the applicant and the matter to which the application relates Per Lord Roskill in R V Inland Revenue Commissioner, ex P. National Federation of Self-Employed Small Business Ltd supra. However, sufficient interest is stretched in constitutional and environmental issues. The recent Kenyan Draft Constitution has abolished the ‘sufficient interest’ doctrine in public law. (v)The application is made promptly within three months from the date of the decision sought to be impugned. (vi) Is there an alternative remedy, than can be pursed. If the application is not compliant with the above check list, the application should be refused. If the review which is sought, is against a tribunal’s determination the grounds arise from the date of that determination or Judgment. There are cases where, even though the application for leave was made within the three month period, leave might be refused because, on the facts, the application had not been made promptly R V Independent Television Communication.

8 On the other hand courts have power to extend time for applying leave to move for Judicial Review, but only if it considers that there is “good reason” for doing so. Where an application to extend time is made, notice must be given to the person who will respond to the motion. (vii) There is a suitable or effective alternative remedy; (viii)Seeking leave prematurely is common ground for refusing leave. In R V Swaffham Magistrates Court. Judicial review may be premature for several reasons, the decision maker may not yet have determined the facts or completed the assessment of relevant factors, an example is where the appellate process has not been exhausted. In Kenny Siambula V University of Zambia, I wrongly granted leave to apply for judicial review prematurely as the student had not exhausted the University of Zambia appellate process against his expulsion, as the University Council had not heard his appeal. However, in cases involving deprivation of liberty the court will be cautious in rejecting a claim as precipitate or hurried. (ix)Where appropriate, a pre-action letter shall be sent requesting the decision maker to reconsider his decision or to give reasons for his decision.

9 RENEWAL OF APPLICATION FOR LEAVEIf the judge determines the application for leave without a hearing and either refuses leave or grants it on terms, the applicant is entitled to renew it. The applicant must file in the Registry a notice of renewal of the application for leave to apply for judicial review, and he/she must do so within 10 days of being served with notice of the judge’s refusal or his grant on terms. The period of 10 days which appears in the rule itself must be followed and the period of 21 days mentioned in the note to the prescribed form should be disregarded. Order 53/14/61 RSC. If leave is refused in a non-criminal matter the application can be renewed before the Supreme Court within 7 days. If the Supreme Court grants leave the matter will be remitted to the High Court for substantive hearing before another Judge. Order 53/14/65 RSC. MATTERS WRONGLY COMMENCED BY JUDICIAL REVIEW: Under Order 53 r 9(5), an action which is erroneously commenced by judicial review may be deemed to have been commenced by writ and be permitted to continue as such. Our Supreme Court made that pronouncement in Sondashi V Miyanda (sued as Secretary General of the MMD).

10 SETTING ASIDE LEAVE The circumstances in which an application to set aside or grant of leave are almost similar to the circumstances for denial of leave. The jurisdiction to set aside is generally agreed to lie within the inherent jurisdiction of the court. In English Law, which is applicable to Zambia leave may be set aside. (i) Where there had been serious material non-disclosure; (ii) Failure to demonstrate an ‘arguable case’, though it was stressed in a number of decisions this was a jurisdiction to be exercised only in the most exceptional cases. Lord Donaldson MR in R V Secretary of State for the Home Department, ex parte Begum supra, spoke of the need to establish some “knock out blow” such as the fact that the original grant of leave was made per incurium, or the existence of a quasi-jurisdictional bar to relief; (iii) Absence of jurisdiction to apply for judicial review i.e. in R V Darlington Borough Council, ex parte Association of Darlington Taxi owners (leave was set aside where the applicants were unincorporated associations and the proceedings were therefore not properly constituted); (iv) Where the applicant should have used an alternative remedy i.e. (failure to proceed by way of statutory right of appeal); (v) Where the applicant delayed unduly ; (vi) Failure to make out a necessary precondition in relation to entitlement to seek review i.e. writing to the decision-maker seeking clarification equivalent to a “letter of demand” in ordinary civil litigation. If the High Court refuses to discharge leave, the respondent can appeal to the Supreme Court against the refusal. That is after an inter partes hearing Order 53/14/62.

11 AGAINST WHOM DOES JUDICIAL REVIEW LIE?The House of Lords in Ridge V Baldwin , stated that judicial review lies against an inferior court or tribunal and against any persons or bodies which perform public duties or functions. The Supreme Court of Zambia in Sondashi V Miyanda (sued as Secretary General of the Movement for Multi-party Democracy held that the Secretary General of a political party was not performing public duties or functions as a political party was not a public body. The MMD was unincorporated association, which association lacked legal capacity to sue or to be sued in their name. Lord Woolf in De Smith’s Judicial Review, says: “The Court now operates on the assumption that if the source of power is a statute or subordinate legislation under a statute then clearly the body in question will be subject to judicial review”. WHEN SHOULD LEAVE OPERATE AS A STAY? The Court may grant a stay at leave stage, Lord Woolf former, Chief Justice of England and Wales says: “Unlike an injunction it is an order directed not to a party to litigation, but at the decision-making process of the court, tribunal or other decision-maker. A decision made by an officer or minister can be stayed by an order of the court. The practical effect of a stay varies depending on the context. Where the public authority has yet to make a final decision, the grant of a stay prohibits them from taking further steps to make that decision. Where a final decision has been made, but not yet implemented, a stay will prevent implementation of the decision, which is suspended for the time being and any formal order is treated as temporarily being no effect”.

12 The Fiji High Court adopted Lord Diplock’s test of balance of convenience in American Cyanamid V Ethicon the case of Waigel Buses V Transport Control Board when refusing leave to operate as a stay, Per Judge Pathik. “When the action being stayed has already been taken you cannot close stables when horse has bolted. There is the ‘ever present legal practice’ of including a provision that the granting of leave should operate as stay, in almost every application.” In Muchaile V The Judicial Service Commission and Attorney General, I allowed for leave to apply for judicial review, but declined the granting of leave to operate as stay, as the applicant had been retired in public interest by the Judicial Service Commission. I could not stay retirement which had already been done and communicated to him. In any event, in cases of unlawful dismissals damages may be an adequate remedy.

13 In Roy Clarke V Attorney General, I stayed the deportation because I was of the view that, that could not be atoned by damages. See also an English decision C V Secretary of State for the Home Department, whose facts were similar and the same decision was reached. “When the governmental institution or government agency is exercising its discretion or statutory functions you cannot stay its actions unless it is acting ultra vires and there is an imminent or concrete threat, that the applicant’s legitimate right if the action is not stayed will be irreparably damaged which damage cannot be atoned by damages.”

14 In Jean Chibola V Attorney General this court refused to stay legitimate police investigations of obtaining of motor vehicles by false pretences by a Congolese woman in South Africa, which vehicles were impounded in Zambia on their way to Eastern Congo. The applicant applied for leave for judicial review, which leave was to operate as stay and for the vehicles to be released to her. The Zambia Police International Division, were lending assistance to their colleagues in South Africa, which is their obligation under the Interpol Protocol. I said in that case: “To ask the court to interfere with police investigations, which they are constitutionally ordained to perform under Article 104 of the Constitution i.e. “to prevent and detect crimes”, is asking the court to denigrate police duties and functions as contained in the constitution which is the supreme law. It would not be legally appropriate for a court to stop any investigative wing which is mandated by statute to perform those functions, when it is acting within the four corners of the law. Otherwise the Court itself will be abusing its power and violating the constitution provision granting the police that power. The Judge will be violating the constitution under which he/she took the oath of office. ”

15 LEAVE AND STAYS IN JUDICIAL REVIEW A SERIOUS MISUNDERSTANDINGIn Zambia, there has been a serious misunderstanding as to when one applies for leave for judicial review and when can such leave operate as a stay. To be emphatic, leave for judicial review and it operating as a stay is appropriate where the legitimate rights of the individual face imminent or concrete threat which is not atonable by damages. In cases where public officials are being sued in the exercise of discretion or statutory power, i.e. regulatory bodies like civil aviation, road traffic commission, Zambia Revenue Authority, the applicant must show that, evidently the decision-maker or body has, “failed every test of neutrality”. The rationale is that these are specialized agencies i.e. civil aviation to determine the airworthiness of the aircraft and are best suited to make sound judgment than the courts. Where the functions of a public official, department are vested by statute, the High Court should not grant leave and a stay without critically analyzing the statutory provisions granting or vesting power in such a public official or department. Where in doubt it is prudent to hold an inter-partes hearing. I hereby illustrate how critical it is to examine the power giving provisions before granting leave and a stay. In the matter of a Decision by the Principal Resident Magistrate Mr. Edward Musona between Michael Chilufya Sata first applicant and Dr. Guy Scott second applicant and The Principal Resident Magistrate first respondent, Attorney General second respondent.

16 The Learned Principal Magistrate was a Respondent in judicial review proceedings for his refusal to refer the applicants’ case to the High Court to determine a constitutional issue in terms of Article 18(2) (b) of the Constitution. The Learned Judge rejected at substantive stage that there was no procedural impropriety, illegality or unreasonableness. The Judge inherited the case after leave had been granted which operated as a stay by another Judge. Leave ought not to have been granted and it ought not to have operated as a stay, because magistrates are immune from civil and criminal actions by section 55 of the Subordinate Court, Act which is couched in these terms: “(55) no action shall be brought against any magistrate in respect of any act done or order made by him in good faith in the execution or supposed execution of the powers and jurisdiction vested in him”. There would have been no ‘arguable case’ to grant leave when there was immunity. The staying of criminal proceedings was unjustifiable as it delayed justice and that harmed public interest. Leave for judicial review against the magistrate and stays are legally untenable unless, if the Subordinate Court acts in bad faith, otherwise they should not pass the leave stage, unless the magistrate is acting in bad faith i.e. where his conduct fails to meet the test of neutrality. The reasons why the judicial review process has been increasingly abused in the recent past in this country because it is the indirect way of injuncting a public official, because if proceedings were commenced, by writ an injunction cannot be obtained against the state under section 16(3) of the State Proceedings Act. Stays therefore which are akin to an injunction are only grantable in judicial review proceedings against the state. No injunctive relief is grantable against the state in any other proceedings.

17 In the case of Nyampala Safaris (Z) limited and Others v Zambia Wildlife Authority and Others’ our Supreme Court recently restated the following basic principles underlying the process of judicial review: (a)The remedy of judicial Review is concerned, not with the merits of decision, but with the decision-making process itself. (b)The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is not part of that purpose to substitute the opinion of the Judiciary or of the individual Judges for that of the authority constituted by law to decide the matter in question. (c)A decision of an inferior court or public authority may be quashed (by an order of certiorari) where that court or authority acted:- (i)without jurisdiction; or (ii)exceeded its jurisdiction; or (iii)failed to comply with the rules of natural justice where those rules are applicable; or (iv)where there is an error of law on the face of the record; or (v)the decision is unreasonable in the Wednesbury Sense, namely, that it was a decision which no person or body of persons property directing itself on the relevant law and acting reasonably, could, have reached.

18 GROUNDS FOR JUDICIAL REVIEW:These broad headings have traditionally been divided into a number of sub-headings. In Council of Civil Service Unions V Minister of State for Civil Service .The House of Lords, took the opportunity to offer a rationalization of the grounds for judicial review and ruled that the basis for judicial review could be subsumed under three principal heads, namely: illegality, irrationality, procedural impropriety. Other grounds might emerge. Lord Diplock elucidated the concepts: (i) By ‘illegal’ as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulates his decision making power and give effect to it. Whether he had or not is par excellence, a justifiable question to be decided, in the event of dispute, by those person’s the Judges, by whom the judicial power of the state is exercisable. (ii) By irrationality, I mean what can now be succinctly referred to Wednesbury unreasonableness. It applies to a decision, which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. Whether the decision falls within this category is a question that Judges by their training and experience should be well equipped to answer.

19 THE RIGHT TO A FAIR HEARING (iii) Procedural Impropriety is failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review, under this head covers also failure by an administrative tribunal to observe rules that are expressly laid in the legislative instrument by which its jurisdiction is conferred, even though such failure does not involve any denial of natural justice. THE RIGHT TO A FAIR HEARING In the twentieth century, the application of this rule (historically termed audi alteram partem) has been considered by the House of Lords in a series of cases including Board of Education V Rice, Local Government Board V Arlidge, which is a pivotal decision and was adopted by the Zambian Court of Appeal in Attorney General V Kangombe. This removed some restrictions on the rule’s application that had developed since 1914 in lower courts, and led to an “explosion” of natural justice cases. Briefly stated, the traditional basic principle was that the audi alteram partem rule had to be observed by anyone who was making a judicial or quasi-judicial as distinct from an administrative decision. Following Ridge V Baldwin supra, a wider variety of decisions were regarded as “judicial” or “quasi judicial” for this purpose. In turn this led some Judges to argue that it was no longer necessary to distinguish between the “judicial” or “quasi-judicial” and the “administrative.” For example Lord Denning in Schmidt V Secretary of State for Home Affairs said:

20 “This has become the accepted position in practice“This has become the accepted position in practice. If a decision affects individual interests, natural justice or fairness must be observed irrespective of the label applicable to that decision, all the legal argument being about the appropriate content of the rule in the particular situation. Another required approach that has been taken is to require observation of “natural justice” in the making of judicial or quasi-judicial decisions, and of a “duty to act fairly in the making of administrative decisions” However, the latest text on Judicial Review de Smith, Jowell and former Chief Justice of England Lord Woolf comment that: “The term ‘natural justice’ is being increasingly replaced by a general duty to act fairly, which is the key element of procedural propriety” The Zambian Supreme Court in Nyampala Safari (Z) Limited and Others V Zambia Wild Life Authority and Others supra stated: “The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected to.”

21 The Zambian Supreme Court’s adoption of the concept of ‘a general duty to act fairly’ is in accord with leading authors on the subject and makes the Nyampala Safaris case supra, a leading authority on the subject in this country. However, that is not to say that further grounds may not be developed. Authors like Barnett have in mind particularly the possible adoption in the future of the principle of ‘proportionality’. In the Zambian case the Supreme Court adopted the principle of proportionality in Attorney General V Roy Clarke. DISCOVERY OF DOCUMENTS AND CROSS-EXAMINATION OF WITNESS Discovery and cross-examination in judicial review are not automatic. They can only be done by leave of the court. In the case of Frederick Titus Jacob Chiluba V The Attorney General (usually referred to as the immunity case) The Supreme Court endorsed the English position that in all applications for judicial review, the primary source of evidence is from affidavits. The court has power to order a deponent of an affidavit filed in the proceedings to give viva voce evidence and be cross-examined. No other witness may give evidence. In the immunity case, The Supreme Court referred to the case of George V The Secretary of State for Environment, to show that courts are reluctant in judicial review proceedings to order cross-examinations. Among the reasons given by Lord Denning for this position, were that experience had shown that on procedural questions arising on judicial review, there was very little conflict on the affidavits and that if cross-examination was allowed, there would be a temptation to try and undermine the actual findings of inferior body. It is therefore in the discretion of the court to order discovery or the giving of oral evidence.

22 In practice however, we see courts, in judicial review proceedings, conducting elaborate trials with bundles of documents sneaked in without leave of court and calling witness, who are not in accordance with Order 53 deponents of affidavits. Only those witness who are deponents of affidavits filed in court can give oral evidence, with leave of the court. THE CONCEPT OF JUSTICIABILITY: Justiciability is a concept, which defines the Judges view of the suitability of the subject matter to be judicially reviewed. There are some cases in relation to which the courts – prove to be exceedingly reluctant to review. In Zambia matters of policy are for cabinet to formulate, so an applicant cannot impugn a policy determined by cabinet, nor a matter such as the exercise of prerogative power i.e, the President releasing prisoners on Independence Day and most importantly, issues of national security, and matters of high policy, the courts may regard as non-justiciable. For example, in Nottinghamshire Country Council Vs Secretary of State for the Environment 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 to public expenditure by local authorities Lord Scarman, ruled that: “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 Judgement for him and house of commons. They are not for the Judges or your Lordships’ House in its Judicial capacity”

23 ATTEMPTS TO EXCLUDE JUDICIAL REVIEW TODAYIt is a first principle of justice and the rule of law that public bodies are required to act within the scope of the powers allocated to them by parliament and, accordingly, in principle, judicial review should lie whenever the vires of administrative action is in question. However, that principle must be set in the balance, against the needs of certain administration, and the necessary restrictions, which may be imposed on individuals or bodies seeking to disrupt the administrative process, without good cause. However, the opportunity for the court to redress the wrong on the exclusion of review in the statute had to be determined by the Court of Appeal held that the jurisdiction of the Court was not ousted by the statutory word: Denning LJ, stating that: “ the remedy of certorari is never to be taken away by any statute except by the most clear and explicit words. 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”

24 THE CONCEPT OF LEGITIMATE EXPECTATION:Now legitimate expectation has been accepted in law as an interest worthy of protection, its existence itself becomes a relevant consideration which must be taken into account in the exercise of discretion. It is placed upon the scale and must be properly weighed. In this exercise, on the one side of the scale is the unfairness to an individual of the disappointment of the expectation induced by the decision maker. Other things being equal, fairness dictates that a public authority ought to abide by the important principle of legal certainty which is, as we have seen a cornerstone of the rule of law. On the other side of the scale, however, is the duty of the authority to pursue the public interest, which is never static and may conflict with the recipient of the legitimate expectation. In the days when judicial review was driven by the need to fulfill the public interest, rather than to respect private rights and interests, the courts would have been inclined to permit the authority wide freedom to override an individual’s expectation in favour of its public duty. These days, however, as we have seen, public power must be exercised with due respect for those whose benefit the power exists. GIVING OF ASSURANCES: In Attorney-General for Hong Kong Vs Ng Yuen Shiu, the applicant had been an illegal immigrant for some years. He was eventually detained and an order was made for his deportation. The Director of Immigration had given a public undertaking that illegal immigrants such as Ng Yuen Shiu would not be deported without first being interviewed. The assurance was also given that ‘each case would be treated on its merits. Lord Fraser of Tullybelton, in the Privy Council ruled that there was no general right in an alien to have a hearing in accordance with the rules of natural justice. Nevertheless, a ‘legitimate expectation’ had been created in the mind of the immigrant and, accordingly, breach of the requirement of fairness justified the order for his removal from Hong Kong to be quashed.

25 Fairness may involve the due consultation of interested parties before their rights are affected in R V Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association, the corporation had given undertakings to the taxi drivers to the effect that their licences would not be revoked without prior consultation. When the corporation acted in breach of this undertaking, the court ruled that it had a duty to comply with its commitment to consultation. ACTING IN A MANNER SO AS TO CREATE AN EXPECTATION A public body may act in a manner, which creates an expectation in the mind of a person or body. In R V Secretary of State for Health ex party US Tobacco International Inc, the company had opened a factory in 1985, with a grant for the production of oral snuff. The Government made the grant available notwithstanding its awareness of the health risks of the product. In 1988, however, the Government – having received further advice from a committee – announced its intention to ban snuff. The company sought Judicial review, relying on legitimate expectation based on the Government’s action. The court ruled, however, that, even though the applicant had a ‘legitimate expectation,’ that expectation could not override the public interest in banning a harmful substance. The concept of ‘legitimate expectation’ was approved in Communication Authority V Vodacom, the Zambian Supreme Court in a judgment delivered by Mwanamwambwa JS. The rationale is that there can only be integrity in government if public officials and institutions can honour their word.

26 THE NEED FOR REFORM: It is important to note that, in Zambia fundamental freedoms i.e, those found in Articles are realizable by petitioning the High Court under Article 28 of the Constitution in a format laid down by statutory instrument No.156 of You cannot proceed by way of Judicial review. However, what happens where the action arises out of the violation of the constitution and of an act of parliament by the same set of facts, as was the case in Roy Clarke V Attorney General. In that case Article 23 of the Constitution was violated in that Mr. Clarke was discriminated because of his foreign origin, at the same time, the Minister exceeded his powers under the immigration and deportation Act. The difficulty that arise, is that the standard of proof by a petitioner under Article 28 of the Constitution is lower, and that of the state higher, in any event in classic Constitutional interpretation the ‘Bills of Rights’ is accorded greater weight to certain rights enshrined therein, than to decisions of parliament, notwithstanding the latter’s ostensible democratic pedigree. What that means is that the state will have to justify, that the taking away of a right, is necessary and justifiable in a democratic society.

27 The merits of the decision in a petition is called into question, while in Judicial Review, that does not arise, what is inquired into, is the decision making process itself, the test therefore is not subjective, but objective, which is a lower standard. Could it therefore be practicable to petition the violation of a right guaranteed under part III of the constitution (Bill of Rights) and seek Judicial Review in the same action?. I think the modern trend, as set out by former Chief Justice of India, Bagwati, is to be less technical in the procedure governing the realization of fundamental freedoms. This is why in India, you can petition a Court even on a piece of paper. SUMMARY: The courts should not grant leave to apply for judicial review as a matter of routine, they must subject the filed documentation to strict scrutiny. Except for decisions which are clearly invalid on their face, all official decisions are presumed to be valid. Decisions ‘to be made’ by regulatory bodies should not be routinely impugned under judicial review, unless it is evident that decision-making body has failed ‘every test of neutrality’. The courts should not arrest decisions of regulatory bodies i.e. Regulators of air transport, road transport, railway transport, Zambia Revenue Authority etc. The consequences can be far-reaching and against public interest i.e. where such stays may result in accidents and loss of human life. A recent application for leave to operate as a stay against Zambia Revenue Authority granting clearing and forwarding licenses for the year 2009, if I granted it would have affected imports and exports in 2009 as the clearing agents who facilitate imports and exports would have not been licensed to do so. The result would have been catastrophic.

28 A court must have a broadened view of the effect of its order for leave for judicial review to operate as a stay. The court should not only ‘sharply focus’, on the documentation submitted by the applicant, but go beyond and balance not only how the order of stay will affect the respondent, but third parties, the public and ensure that the order is not detrimental to good administration of a nation’s affairs. Routinely granting stays could be crippling or disruptive to the well-functioning of government. The Judicial Review is more concerned with the decision making process itself and mainly deals with the improper exercise of discretion, by exceeding the powers conferred, which might be illegal, unreasonable in the wednesbury sense. There may also be procedural impropriety, though proportionality has emerged as a ground, the distinction between unreasonableness and proportionality is extremely thin. This is what has constricted the emergency of proportionality as a ground. A Judge cannot substitute the opinion of the decision maker by his/her own nor does he/she act as an appellate court. A Judge hearing a petition under the ‘Civil Rights Rules’ like any judge interpreting any constitution provision dealing with fundamental freedoms must liberally interpret the provisions. The standard of proof by a servant of Government who interferes with Rights and freedoms is very high as he/she must show that it is justifiable, necessary and expedient in a democratic society. A tangential assertion, either in the name of national security will not do. He/she must lay a proper foundation by way of laying evidence of that necessity.

29 PHILLIP MUSONDA MCArb, LLB, UNZA LLM London PHD UNZAIt is however, suggested that there is need to harmonize the two procedures and to simplify them as is the case, with Canada, India, South Africa and United States. It is time for Zambia to enact its own Judicial Review Act, which will reflect the country’s peculiar circumstances like Trinidad and Tobago, which is a small jurisdiction has done. Thank you for your attention and I wish everybody here present God’s blessings. PHILLIP MUSONDA MCArb, LLB, UNZA LLM London PHD UNZA SUPREME COURT JUDGE