Tuesday, 17 January 2017

What’s all this fuss about Judicial Review?

By Mfundisi
In the past days, the ‘Malaŵian’ section of social media has been abuzz with the matter before the Mzuzu High Court.[1] A Malaŵian and some Civil Society Organisations have sought Judicial Review of events surrounding the now infamous Maizegate and Commission of Enquiry appointed by the President.[2] Now the purpose of this article is not to discuss the Maizegate or the merits of the matter before the Court. This article is aimed at clarifying some of the issues around the matter before the Court.

Judicial Review
Judicial Review is a legal process that originated in England. It came to Malaŵi as part of the English Legal System which we adopted as part of our colonial history. Judicial Review is a specialised part of what is called Administrative Law. It is common in countries whose legal system is based on the Common Law. The Common Law is a legal system that developed out of local customs in the mid-ages in England.[3] In a way, it is similar (although not exactly) to Customary Law. It emerged as a body of rules to largely address procedural remedies.[4] The development of the Common Law was not through Statutes (Acts of Parliament) but rather through judicial decisions. It was, therefore, Judges who developed and continue to develop the Common Law. It is for this reason that it is sometimes called Judge-Made Law. So contrary to what may have been written, the practical reality is that Judges do in fact make law. This is to distinguish it from the other forms of laws which are made by Parliament. The Common Law today embraces another form of law called Equity. Equity was a body of law that developed to address substantial remedies where the Common Law was seen as being rigid. Although we now have Statutory Law, the Common Law, and Customary Law as part of our law in Malaŵi, the system is still called the Common Law System.[5]

What distinguishes the Common Law from other legal systems is that it is an Adversarial System. This means adversaries ‘fight over’ some legal issues before the court. Sometimes the fights can be bitter, but they are fights of words and legal technicality as opposed to fists. There are therefore basically two sides to a matter. There may be more than two parties, but there will usually be two main adversaries. In a way, it is not too dissimilar to the secondary school debates where you have the Proposer and the Opposer. It is these two sides that argue their case before the Court. When we say Court, we are not referring to the building where the matter is heard. We are referring to the Judge or Magistrate or any presiding judicial officer(s). In an Adversarial System, the Judge is a is a neutral arbiter who must decide on the matter. His/her duty is to listen to both sides of the argument and adjudicate the dispute (come up with a decision) based on the law. The duty of the Adversaries is to convince the Judge that their version of events as supported by the law is the correct one. The Judge does this by applying the law to the facts. It is highly important that this is clearly understood. I have read a lot of comments in this case, and in other cases, where people have made not-so-flattering remarks about the Court. We forget that it is not the Court that brought the matter before itself, but the parties to the dispute. The duty of the Court is to simply adjudicate the matter based only on what has been presented before it, and nothing else. If there is anything worth remembering; it is that the Court is a neutral arbiter. The Court is the one that gets moved by parties. If the parties do not go to Court, the Court will not do anything. Let us remember that.

But what is Judicial Review?
This is a type of a “court proceeding, in which a judge reviews the lawfulness of a decision or action or failure to act, by a public body exercising a public function.”[6] It is, therefore, concerned with three things: 
  1. Decision 
  2. Action
  3. Failure to act

The decision, action or inaction must be by a public body. A public body may be a person working in public capacity or a public entity. Judicial Review is, therefore, concerned about the processes rather than the decision itself, unless the decision is manifestly unlawful or wrong. Therefore the real parties to a Judicial Review proceeding are the State and whosoever is being called upon to answer. These are called the Respondents. The application is usually made by citizens or groups or bodies that feel that the public body or person has failed to discharge their public duty. Put simply, in Judicial Review proceedings, the State calls upon one of its organs [Respondent(s)] to answer to some ‘complaint’ that a member of the public or some other body has made. Now, who is the State? The State is an embodiment of all of us. We comprise the State. We are therefore collectively the ones in Judicial Review proceedings asking the Respondents to explain their decision, action or inaction. It is us asking the Respondents to answer. Now that is sobering! Judicial Review is a way of supervising “the administrative decision making” process. Because of its nature, it is “a fast, effective and powerful way to convince a public body to reconsider a decision or force them to take action they should be taking.”[7]

On the oft-cited issue that no decision has been made therefore no Judicial review may lie, this is what Justice Chikopa said:
There are two ways of looking at this … First is to consider whether as a matter of general principle no judicial review should lie in every case where a public office or officer claims to have made no decision on the matter before him. The answer should be in the negative. There will be instances where a public office or officer decides not to make a decision. The complaint in that instance will be the public officer’s or office’s very inability or unwillingness to decide. We think that in those instances courts should allow sufficiently interested citizens to move for a review of the officer’s or office’s decision not to decide. If the Courts did not they would be party to allowing capricious public officers and/or offices hide behind such inability/unwillingness and deny citizens what is otherwise their entitlement. We, therefore, refuse to throw out the Applicants’ application merely because the Respondent claims to have made no decision …[8]

In terms of the procedure, before the Court hears an application for Judicial Review, there is a preliminary process that must be followed. The legal term is called granting leave. This means the Court has given permission for the application to be made. In other words, the Court can refuse to grant leave where it considers that the application is vexatious, frivolous or raises no arguable or triable issues. Vexatious refers to an action brought simply to annoy or frustrate but which has insufficient grounds for winning. Frivolous simply refers to an action that may best be described as being merely silly or trifling. The purpose of this process is to weed out claims of this type. An application for leave to commence Judicial Review proceedings is normally filed ex parte. This means it is heard only from one side, the Applicant. There may be circumstances in which the Court may order that an inter partes hearing be done. This is where the Court wants to give the Respondent(s) an opportunity to be heard on whether leave should be granted or not. However, the default position is that the applications are made ex parte. When the Court refuses to grant leave, then that is the end of that application. It suffers a still-born death. Now where the Court grants leave, there will be some interim ancillary orders or reliefs that the Applicants would have asked (prayed) for. This is where it becomes tricky. On the grant of leave, the Court may also grant the interim reliefs that have been prayed for. These are mostly in the following forms:
  • Injunction – a court order prohibiting a person from doing something or requiring them to do something;[9]
  • Stay of proceedings - a halt or stop to proceedings, apart from steps allowed by the rules or by the terms of the stay (maintain status quo). A stay can be granted after the decision has been implemented.
  • Interim declarations[10]

Now the grant of any interim relief is always discretionary. The Court may refuse to make such a grant. It is up to the Applicants to convince the courts, at face value (prima facie) that it is in the interest of justice to grant such a relief. Now the term interest of justice has raised a lot of debate. What does it really mean? When a court makes a determination, the ‘winning’ side says the interest of justice has been served while the losing side laments that the interest of justice has not been served. How is it then possible that in the same one case, justice can both be served and not served? Well, the answer to this is that there is a difference between justice and justice according to law. The courts dispense justice according to law. As individuals, we all have our own perceptions of justice. It is imperative therefore that we distinguish this from the justice dispensed in Court. So what am I really saying? No matter the outcome of a case, justice is always served. The law always triumphs. This is because the Court, as a neutral arbiter in an Adversarial System decides the case based on the facts and evidence before the Court, and not what is in the public domain. In determining an issue, the Court applies the law to the facts. That is what the process of judicial adjudication can be simplified to. That is justice according to law.

Now I did say earlier that the default position for application for leave for Judicial Review is that they are done ex parte. Therefore it is normal that where an injunction is granted as an interim relief upon leave being granted in Judicial Review proceedings, it will be granted ex parte. Put in another way, there is nothing amiss with an injunction in an application for Judicial Review being granted ex parte. In fact, interlocutory injunctions even in other cases are normally granted ex parte. The granting of an injunction usually follows a preliminary inquiry in which the Applicants must demonstrate prima facie that:
  1. There is/are serious issue(s) to be tried;
  2. Damages (compensation) would be an inadequate remedy for the Applicant;
  3. The balance of convenience lies in the granting of the injunction.[11]

In the matter of The State v Chaponda and others Ex Parte Kajoloweka and others[12]
In this matter which has been the subject of many a debate, Mr Kajoloweka and others have applied for Judicial Review in a matter which is between the State and the Minister of Agriculture George Chaponda, the Attorney General and the President. These are the parties to the matter. Of course in the practical sense; the case will be argued between the Applicants and the Respondents since the State is the legal fiction under which Judicial Review proceedings are brought. I use the term legal fiction deliberately. It does not mean it is a fiction, not at all. The State does exist, in fact. But in a Judicial Review, the State is not really present except as the invisible summoning party. Proceedings merely ensue (are started) in its name.

To cut a long story short, an application for Judicial Review was made by the Applicants. It was as would be expected, an ex parte application. Furthermore, the Applicants filed a Certificate that the Matter was Urgent. This is done to abridge (reduce) time where the application is made short of the prescribed (normally set or specified) time. This is the procedure for abridging time. Leave was granted and an interlocutory injunction was also granted by the Court. An interlocutory injunction is distinguished from a permanent injunction. It is one granted to the Applicant in which the Court orders that the Respondent is compelled or prevented from doing certain acts until the matter if finally determined or until the Court makes another order to the contrary. Its purpose is to maintain the status quo and preserve the Applicant’s rights before the case is heard and a judgement made. So what did the Order say in relation to Dr Chaponda? It restrained him from discharging his duties as a Cabinet Minister until the finalisation of the investigations by a Commission of Inquiry set by the President. It further warned that any person who disobeyed the Order risks being guilty of Contempt of Court. It also gave the Respondents the right to vacate or vary the order provided they gave the Applicants 48-hours’ notice. Now before we go into the substantive elements of the Order; I should say that the wording of the order is normal in interlocutory injunctions. There is nothing amiss there. In exercising their legal rights, the Respondents, through the Attorney General did file an application to vacate the leave granted for Judicial Review. The Respondents argued amongst other things that:
  1. The Court does not have jurisdiction to conduct Judicial Review in this matter
  2. The Application by the Applicants does not disclose an arguable case or serious questions fit for further inquiry at Judiciary review hearing.
Now it must be noted that the argument of the Respondents was not that the injunction should be lifted per se, but rather that leave for Judicial Review should not have been granted altogether or having been so erroneously granted, it should be vacated. If this argument were to be successful, it would mean the Court would throw out the Application for Judicial Review wholesale and with that would follow the automatic vacation of the injunction against Dr Chaponda. It has since transpired that the Court has sustained the grant of leave for Judicial Review as well as the interlocutory injunction until the 31st of January 2017 when it will deliver its ruling. So what does this mean? It means the injunction still subsists (exists) and that Dr Chaponda is restrained from discharging his duties as a Cabinet Minister unless the Courts rules to the contrary on 31st January 2017. Interestingly, this is the same date set for the finalisation of the investigations by a Commission of Inquiry set by the President. Now let us look at why we have these three Respondents. It is common knowledge that Dr Chaponda is the Minister of Agriculture, under whose jurisdiction the food utility ADMARC Limited falls.[13] All civil suits (claims) against the Government are through the Attorney General. Although a Judicial Review Application is not a civil suit, the Attorney General is still the person who must usually respond for the various public bodies that get called to answer as Respondents in Judicial Review proceedings. The President is the person who appointed Dr Chaponda as Minister and who also appointed the Commission of Inquiry. The Attorney General has filed an application to be removed as a Respondent on the basis that the matters that the Applicants want the Court to review do not directly affect him as a decision-maker. I would when I first saw the list of Respondents, I was also surprised and concluded that he had been included on the basis of his position as principal legal adviser to the Government. In any event, like indicated earlier, the Attorney General would still have to represent the Respondents, whether or not he is listed as a party to the proceedings. We await the Court's ruling on this. For the avoidance of doubt, should the Court agree with the Respondents on the substantive arguments presented at this stage, leave for Judicial Review will be vacated and the matter will come to an end. Should it not, it may make rulings on individual issues raised by the Respondents (such as whether the Attorney General should still be a party or the CSOs can continue being on the list of Applicants). In that case, the real hearing of the Judicial Review proceedings will commence.

The issue of the Restraining order has attracted a lot of debate, some of it furious and even acrimonious. The first issue has been whether or not the Court has the jurisdiction (or power) to restrain a Cabinet Minister. Several provisions have been quoted in our Constitution in support of either side of the argument. I for one at this time wish to make no comment in support of either side. The reason is simple. As a teacher of law, and a legal practitioner, I refrain from commenting on legal issues that are still within Court until a determination has been made. It does not mean I cannot comment, but rather that I cannot delve into the merits of the case. The legal term used is sub judice which means if a matter is under judicial consideration, it must not be publicly discussed elsewhere. Secondly, I do not possess the requisite expertise in this area of law to give a competent opinion and analysis on the constitutionality of the Court’s action. I have made this known before and it has been construed as a gag against commenting on the case. In fact, it is not. However, I would still insist that analysis of Constitutional provisions in such complex matters does require a certain level of expertise. It needs the expertise of someone who has spent a considerable amount of time researching on and around the Constitution. I have not. I can comment on the injunction now because the question of injunction has been determined for now. Secondly, it is a matter of procedure which as a practising lawyer I can competently comment on. Now it must be borne in mind that the Attorney General did raise the issue of jurisdiction as a preliminary issue. Does the fact that the Court has sustained the grant of leave and the injunction mean that the Court has made a determination on this? I would say not it does not. In fact, it may well end up that the Court decides after hearing the parties at the full hearing that it does not have jurisdiction after all. It may on the other hand hold that it does. What I am saying is that we must be cautious not to over-interpret the decision of the Court at this preliminary stage. The matter is yet to be heard and decided. It is only after the full hearing and a judgement of the Court that we can have a full picture of what this matter means. Then we may delve in with our comments on the substantive questions of law. 

Now the second issue, also related to the first is that what the Court has done is to suspend the Minister, something it does not have jurisdiction to do. Once again I will try to tackle the first part about suspension but will not comment on the question of jurisdiction. For a start, a restraint and suspension are not technically the same thing. A restraint order is a preventative order. It stops the person to whom it is targeted from doing certain things. In this case, it is preventing Dr Chaponda from discharging his duties as a cabinet minister until the finalisation of the investigations by a Commission of Inquiry set by the President. So it is time-bound as the order will fall away automatically after the finalisation of the Commission of Inquiry (which is unless it changes 31st January 2017). It does not dismiss Dr Chaponda nor suspend him as a Cabinet Minister. He remains a Cabinet Minister but is prevented from discharging his duties during that time. Now, what is a suspension? In relation to this particular matter, it is an act of temporality removing a person from office or privileges.[14] So there is a difference between restraining and suspending but is there a substantial difference? In other ways, when it is all done and dusted, can we separate the two? I would argue that in practical terms the effect is the same. When a Court issues a restraining order, it is in fact also serves as a suspension order. Therefore for the avoidance of doubt, my own understanding of this would be that Dr Chaponda has been suspended. Should he have been suspended? Ought he to have been suspended? Does the Court have the power to suspend him? That are matters which the Court will have to adjudicate on and we can only await the judgement after a full hearing. For now, Dr Chaponda is suspended. That is the law.

Does it mean that Dr Chaponda should then stop using his Ministerial car and stop enjoying his other privileges? I do not think that the Order says that. The order merely restrains him from discharging the duties of Cabinet Minister until 31st January 2017. It does not stop him from being a Cabinet Minister. It merely withdrawals his Ministerial powers, so to speak. So can Dr Chaponda use his vehicle etc.? Well we are in new territory here. It is a rather grey area. I do not think a situation like this was ever envisaged. I do not think the Presidency at any moment in time commissioned the drafting of a clause in the Ministerial Conditions of what happens when a Minister is suspended or restrained. For the President it is simple; he has the prerogative to fire without even giving the reason for dismissing a Cabinet Minister. So what next? The Respondents cannot appeal the decision of the Court to refuse to vacate the leave granted and its attendant injunction. This is because according to our civil procedure, you only appeal a decision made on the substantive matter. In this case, the substantive matter is yet to be heard, let alone decided upon. Like I said, had the Attorney General succeeded in vacating the leave for judicial review, the matter would have been closed and Dr Chaponda would have resumed his duties as Cabinet Minister without hindrance. Right now he is under a legal hindrance.

In summary “judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself.”[15] Unless manifestly absurd, illegal or wrongful, it is not the decision itself that is questioned but the process. So it arises in relation to the lawfulness of a decision or action, or inaction. Now in the matter of the State v Chaponda and others Ex Parte Kajoloweka and others, at this point, we cannot say whether the decision, action or inaction of the Respondents is unlawful. This is for the Court to eventually decide. We cannot also say whether or not the Court has jurisdiction over this matter. That also is for the Court to decide. If the Court decides that it does not have jurisdiction, the clearly the issue of whether there was a ‘decision, action, or inaction’ will be of no consequence. On the other hand, if the Court decides it has, then the Court will have to adjudicate who, between Applicants and the Respondents have presented a convincing case. That is the beauty of the Adversarial System. So for the rest of us, all we can do is wait. What happens to Dr Chaponda in the meantime? Well unless the order is varied, he remains restrained or rather suspended. This is an avenue that no one in Malaŵi has travelled before. We are all learning from the experience and look forward to the precedence that the Court will set out in the end. For now, at least this can be said, the term no-one is above the law is starting to have some meaning.

Final words
Some have argued that the issue before the Court is not justiciable. To be justiciable simply means to be subject to trial in a court of law. In other words, it defines the limits under which the court may exercise its jurisdiction over some legal issues. I make co comment on the justiciability of this particular matter except to point out that readers may wish to read the decision in The State v The Registrar General Ex-Parte Msenga Mulungu and others.[16]

I have read comments to the effect that what the Court in Mzuzu has done is to infringe upon the sacred doctrine of separation of powers. This is a doctrine that originated in England which essentially says there must be a separation and independence in the functioning and powers of the three arms of government. These are the Executive, legislature and Judiciary. But no one has ever said this separation must be absolute. In fact, in England where the doctrine originates from, the Executive is subsumed into the legislature. This is because all Cabinet Ministers and the Prime Ministers are in fact also Members of Parliament. So while the doctrine does provide for distinct arms of government to be allowed to function on their own, the doctrine was never about drawing boundaries in concrete. In fact, this doctrine only makes sense when paired with the twin doctrines of checks and balances and transparency and accountability.
It is for this reason that the following happens in Malaŵi:
  • The President is sworn-in by the Chief Justice (a Judge)
  •  Members of Parliament are sworn in by the Chief Justice
  •  The Chief Justice is nominated by the President but confirmed by Parliament
  • The President appoints Judges on recommendation of the Judicial Service Commission
  • Parliament can impeach both the President and his Vice as well as Judges
  • The Inspector General of Police is nominated by the President but confirmed by Parliament
  • The President appoints the Clerk of Parliament on recommendation of the Parliamentary Service Commission
  • The Executive formulates the budget but Parliament must approve it
  • The President has to present his State of the Nation Address in Parliament
  • Apart from opening a session of Parliament, the President can prorogue parliament.

What this means is that the doctrine of separation of powers is not cast in stone. Rather it is etched on sand. Its boundaries are constantly changing. What it does is to prevent interference of one arm against another. But what it does not is to allow one arm to do whatever it would want. Under the doctrines of checks and balances and transparency and accountability, each of the arms must be on guard ensuring that the other arms are all operating according to Constitutional tenets (principles). The reason for this is because, under the Constitution, all arms of Government are bound by and subservient to the Constitution.[17] The Constitution is supreme[18] and only the Judiciary has been given the power to interpret it.[19] So let us respect what the Constitution has decreed. Democratic anarchy? I would think not. Not yet, anyway.

[1] The State v Chaponda and others Ex Parte Kajoloweka and others Misc. Civil Cause No. 1 of 2017, HC (Mzuzu)
[2] Thom Chiumia, ‘Mutharika appoints Commission of Inquiry to probe K26bn ‘maizegate’:  Malawi ex-chief justice Msosa to head Zambia import deal inquiry’ Nyasa Times  <http://www.nyasatimes.com/mutharika-appoints-commission-inquiry-probe-k26bn-maizegate-malawi-ex-chief-justice-msosa-head-zambia-import-deal-inquiry/#sthash.4MddCoND.dpuf> accessed 17 January 2017.
[3] Andrew D.E. Lewis, Albert Roland Kiralfy, Mary Ann Glendon (2016) ‘Common Law’ Royal Britannica <https://www.britannica.com/topic/common-law> accessed 17 January 2017.
[4] Ibid.
[5] Section 199, Constitution of the Republic of Malaŵi 1994) <http://www.malawi.gov.mw/images/Publications/act/Constitution%20of%20Malawi.pdf> accessed 21 December 2016
[6] ‘An Introduction to Judicial Review’  <http://www.publiclawproject.org.uk/data/resources/6/PLP_Short_Guide_3_1305.pdf> accessed 17 January 2017., p1.
[7] Ibid
[8] The State v The Registrar General Ex-Parte Msenga Mulungu and others, Misc Civil cause. No 114 of 2010, HC (Mzuzu).
[9] For a discussion on injunctions and the law applicable in Malaŵian Courts, see American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396.
[10] Clive Sheldon, ‘Interim Relief - Making the most of the Administrative Court’ (2006) <http://www.adminlaw.co.uk/docs/Clive%20Sheldon%20-%2028%20November%202006.doc.> accessed on 17 January 2017.
[11] American Cyanamid Co. v. Ethicon Ltd.
[12] Misc. Civil Cause No. 1 of 2017, HC (Mzuzu)
[13] Most people still think that ADMARC is a statutory company. It is not. A statutory company is one created by Statute or an Act of parliament. The Act that created ADMARC was repealed in December 2003. It is now a private limited company but owned by the State. It is, therefore, a State Owned Enterprise.
[14] ‘Definition of Suspension’ (Merriam-Webster, 2017) <https://www.merriam-webster.com/dictionary/suspension> accessed on 17 January 2017.
[15] Per Chikopa J, The State v The Registrar General Ex-Parte Msenga Mulungu and others.  
[16] Misc Civil cause. No 114 of 2010.
[17] Section 4, Constitution 1994).
[18] Sections 5 & 9, Ibid.
[19] Section 9, ibid.

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