DATAFIN PROJECT – JUDICIAL REVIEW – ACCOUNTABILITY
I) Accountability of Judiciary in exercising public power:
Judiciary also known as judicial independence is the principle which is used to protect judiciary from the influence of legislative and executive power. The reason to protect the judiciary is for maintaining rule of law where everyone should be treated equally in the eyes of law and justice should be given to all without any discrimination of their position. This independence of judiciary helps in maintains justice in the country, but this right or independence should not be misused and for that reason judiciary is held accountable for maintaining justice in the country and globally.
Accountability is taking responsible for the decisions or actions taken such that they can be explained when questioned for. It is known to be the sine quo non doctrine of democracy. It is essential that a person should be held responsible for the decision he gives such that it does not affect the living nature of any individual. Under judiciary the judge holds the responsibility of the decision he gives because the decision given by him impacts the life of the individual and his status in the society. Accountability has been the main theme and key problem for a constitutional problem. The reason that it is a key problem is that not all are ready to make themselves accountable for decision taken. In the current essay we have to understand what judicial review is and how it is accountable in the present scenario of exercising power over public.
Judicial review is the judicial statement given by the judge in particular situations whether public or private. This review works counter to the characteristics of the constitution. Judicial review is essential to evaluate that characteristic of the constitution which includes the electoral power and other administrative powers. These administrative powers differ when relating to public and the private sectors and also the departments. Review is a kind of evaluation over the actions of legislative and executive. Of the three divisions of constitution judiciary has the power to review the powers of the other branches such that there is proper flow of administration in the country.
Arguments in favor of & opposing judicial review over public powers: As stated we all know that judicial review is very essential for proper flow of administration. It is a kind of evaluation of the work and a standby help to the public on whom these powers are executed. Public powers here are also known as administrative laws that do not include the constitutional laws; these laws are reviewed by a judicial authority in a way that the public authority is abiding by the rules and principles under which it is governed.
The administrative law is not about the powers it is about abusing the powers assigned to the public authority. Administrative law is very essential for the public and is to be evaluated by judicial review. Judicial review over public law is essential when the public authority misuses his power for private benefit or when he refuses to perform a lawful activity which in turn results in frustrating the laws relating to the public. The approach of courts (judicial review) towards administrative law that is the public law ensures providing proper review on claims and proceeds and also on the facts provided. The court also acts in a proactive to bring in issues that have not been addressed by either parties such that it may resolve the public dispute. This review helps in administering the limits in application of public law such that there are no disturbances in the regular life of public. These arguments are further discussed in Grollo v.Palmer & Hillton v. Wells.
When the faith of people in the quality, integrity and efficiency of the government bodies is disturbed they look over to the judiciary as their last hope as it is an independent body and impartial. There is no clause of bias under judicial review thus people look forward to judiciary as their final hope when the other divisions such as legislation and executive are not doing them any good (heenavrm, 2011). But in the current scenario there are situations where the judiciary is getting influenced by executive and legislative bodies. A judiciary which must be an impartial body so as to protect the rights of all individuals, because no one however high is above law, but as we all know there are many instances where the authority of law is being misused mostly by politics and monetary values. The actual reason for establishing a judicial review has been mis utilized for the benefit of the political bodies or others who are in a power to interpret law. These are the arguments which explain that the power of judiciary has been mis utilized. It can easily be understood that the arguments opposing the judiciary are more persuasive than favoring its powers over the public. Many political bodies have been using it for their benefit such that they can benefit from it. It would be very difficult to prosper with such political approach thus the judiciary has to strongly move against such use and become more pursuant in its application in protecting public interest and properly administer the public laws.
II) The datafin project marked a major growth in the review of judiciary in English law. It combined the application of company law along with administrative law. This project is discussed in R(Datafin pls) v. Panel of Takeovers and Mergers (Kinsella C.J. , 1987, pp. 200 – 203) which is believed to have brought a greater change in the application of Judicial Review. This project developed the application of judicial review, it abolished the limits of it application on only bodies formed by statue. Under this case the Panel of takeovers and mergers was a private body involved in London dealing with take overs and mergers, and the main issue is that the panel was a private authority demanding for the application of administrative laws as it refused leave to seek judicial review by high court, and appealed in court of appeals. The court of appeal viewed that as the work of the panel fall under the domain of public law and is a private body it cannot be dealt under the public law, but as it is dealing with the public process where it effects any individuals involving themselves in bidding and auction of property which is under the scope of public law it made the panel amenable to the judicial review. This famous judgment bought in greater change in the view of the judicial review over private bodies. [1] Before Datafin, only those established under the statue were enforceable by judicial review and the private bodies were sued only on the basis of the contract and the tort in their action.
After the datafin the private sectors dealing with public domain are made eligible for public review. There are many criticisms for this decision because the private sector should not be given the permission to involve in the public status, because they are tent to be used for private use and may increase the control of private individuals over public statues. The decision to allow this review was due to the extent of power of Panel and lack of appeal procedure under the court of appeals. The decisions of judicial review for those bodies are self-governed bodies but work under the public domain where the decision procedure of those bodies are governed under the public law duties and sanctions. This decision makes it difficult to formulate a bright line distinction between public and the private law, the reason behind the decision give in the Datafine case is not reasonably satisfactory. However, it is to be noted that the bodies performing the public or statutory work are subject to judicial review. What we need to understand is what bodies beyond those presently should be exposed to judicial reviews and on what grounds.
Privatization of the statutory bodies makes the above question more important than they would have otherwise been and even more the ultra vires subscription of foundation for judicial review. As already stated in the given case the decision in the Datafin had made it controversial because the extension of statutory bodies to private people is more disadvantageous than to exercise of the prerogative powers, because prerogative powers are those which exercise public powers in a traditional form with recognized judicial forms appropriately applied. For a proper judicial review it is essential that there is appropriate application of public law. As it is not a statutory body and only the judicial review was given because of its work under the public domain this decision cannot be considered as a historical decision in giving the private sector the right of judicial review. The right of judicial review as stated earlier is only applicable to public domains that are authorized by statues.
The decision of Datafin has failed in Australia because the availability of the injunctions and declaratory relief to the statutory bodies may overcome the deficiencies in the applicability of judicial review. These remedies are in no way adequate for the private sectors as challenge on recognized judicial grounds is absent. Thus, private law is proved to be inadequate because it may fail to provide appropriate grounds of review. Due to this main reason the Datafin project has mainly failed in Australia and has lost its applicability due to the distinction made between the public and private law on the availability judicial review. The lack of dependency of the judicial review is the main reason behind the failure of Datafin.
III) Exercise of Public Powers through private bodies other than judicial review:
We have already understood through the Datafin project that judicial power given to private bodies is a failure and not adaptable but in the present scenario the boundary between the public and the private sector has been blurred in such a way that government has to device public powers through private sector, but before going forward we need the question as to can a public authority avoid public law requirements, the answer to this by the Canadian Supreme Court is “no”, but it did not explain to what extent the court would extend its boundaries in growth of private role in governance. The integration of the public and the private sector in administering the state laws through contracting and privatization of public function increases the fear as to the application of the public powers. It would be difficult to conclude that the powers rested in the hands of the public can be dealt properly. The tools of the administrative law have to be adaptable as to the current situations and thus they have expanded the Ombudsman oversight in including private sector. Various countries have resolved this issue in various ways through various arrangements. As stated Ombudsman is one of the resolutions they have found for this reason.
As the demands of justice in the current era are more demanding there is a need to apply the mechanism of private sector for the public law other than the judicial law. The aim behind privatizing a part of public law is basically to have all the laws of the administration dealt properly and that justice is given to all. The bulk growth of demands in the public law has left the governments no chance but to use certain private bodies to improvise the laws but these private bodies are controlled under the Ombudsman in certain industries (Javed Sadiq Malik, 2009).
The extension of public laws to private authorities is an unresolved issue, but there are many private bodies found exercising the public law powers [1] such as the Law Societies, Bar Council, Advertising Standards Authority, Pharmaceuticals regulating authority, Telecommunications services authority, etc., Also a private body established by the industry but integrated with public regulations are some of the satisfactory mechanism which can exercise public power other than the judicial review (Lord Hoffman, 1996).
Thus, it can be concluded that private authorities can take role in public law but the decision making power lies with the public authority, because privatization of public law will always arise as a doubt to whether the services provided will be as good when compared to public law.
REFERENCE:
- [1] [1987] QB 815, [1987] WLR 699, [1987] 1 All ER 564,http://www.publiclawproject.org.uk/downloads/GuideGroundsJR.pdf
- R v Criminal Injuries Compensation Board, ex p; Lain [1967] 2 QB 864, where Lord Parker CJ had observed, at p882, that the exact limits of the ancient remedy of certiorari had never been and ought never to be specifically defined. http://www.lawgazette.co.uk/news/r-v-panel-take-over-and-mergers-ex-p-ltpgtdatafin-plc-and-another
- Defining the Scope of Judicial Review: Datafin and the “Public Power” Project, Isabel Knott, Monash University, 2003
- VRM Heena, Judicial Accountability in India, Law-Lawyers & Legal Profession, Legal Services India; http://legalservicesindia.com/article/article/judicial-accountability-in-india-538-1.html
- Kinsella C.J, Judicial Review – Nature of Powers Exercised, The Cambridge Law Journal, Vol. 46, No. 2 (jul., 1987), pp. 200-203, Cambridge University Press
- Groves Mathew & Lee HP,Australian administrative law: The constitutional and legal matrix, 2007, Monash University, Victoria
- Harlow Carol, Global Administrative Law: The Quest for Principles and Values, The European Journal of International Law Vol, 17 No. 1
- ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977; Commonwealth Consolidated Acts
- Privatization and the boundaries of judicial review, Felix Hoehn, Canadian Public Administration, Volume 54, Issue 1, pages 73–95, The Institute of Public Administration of Canada 2011
- Javed Sadiq Malik, Federal Ombudsman of Pakistan, The Ombudsman Reaching Outside the Public Sector, 2009;
- Lord Hoffman, 7 Bond L Rev 1 @ 15, 16 and (1996) 8 Bond L Rev 210.
- R v Jockey Club; Ex parte Aga Khan supra 931-932
- Chapman Limited v Australian Stock Exchange Limited (1996) 67 FCR 402
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