Question 1

Administrative Law: An overview

Regulation conducted by government authorities need to be in line with the citizen’s behavior.  Two major types of laws are private law and public law (rkb-law.co.uk, 2020). As the name implies, private law governs and regulates the relationship between the private organization and persons, and includes legislations such as consumer law, property law, and contract law. On the other side, public law is the one, which regulates the government organizations and the relationship of people and the government. Examples of public law include criminal law, taxation law, constitutional law, and administrative law.

A branch of law which governs the regulation and administration of government agencies is known as “administrative law.” These agencies regulate and oversee several social issues and economic functions. This law is also known as “regulatory law.” The main objective of this law is to outline the power of administrative agencies and the rules which these agencies can make. The law clarifies the legal relationship of the public at large and other government bodies with such agencies.

In Mauritius, the administrative law is as same as English law. It is to be noted that the administrative law is derived from the common law and usually develops over a period through case laws. It provides the means and measures, which is used for judiciary prevention and control the misuse of authority and power by executives.  

The Republic of Mauritius has placed a written constitution. The powers are separated among three branches of the government namely the executive, the legislative, and the judiciary, which are embedded in the constitution. This separation of the powers acknowledges and increases the significance of administrative law, whereby using this branch of the law, courts regulate the working of government agencies. In addition to the parliament, other public bodies are also considered as subordinate to law and therefore the same must execute their functions within the boundary of law. Disputes may arise between a government body and a citizen in different situations. For instance, in order to build a motorway, if a government body acquires a house of an individual forcefully, then in such a situation the citizen can take such a matter to the court alleging that these actions were outside of the power allowed under legislation created by the parliament. This law ensures that in those cases, where government bodies and agencies do not follow the appropriate procedure while discharging their duties or act in an irregular manner, then the aggrieved person has remedies available against such administrative actions. It is crucial to note here that the sources of administrative law include the constitution of the nation, legislations, and the common law.  

Scope and role of administrative law 

Administrative law addresses “the idea of the good government” where it enhances rationality, participation, fairness, openness, impartiality, legality, and accessibility of judicial as well as non-judicial grievance procedures. It challenges the mistakes in authority implementation and the exercises that are justified as legitimate. In Mauritius, the scope of administrative law is wide, same as inclusive of the cases of dismissal, misconduct or any other matter concerning to public rights administrative and public statutory bodies (Gunputh, 2018).

One of the major characteristics of administrative law is its capacity to make a balance between private rights and public interest, whereas some powers are given to the government agencies but the same is limited to individual rights. To discuss the scope of administrative law, it is to state that it covers the nature of functions, powers, and structure of all the administrative organs. Further, it contains the procedure and methods of these administrative organs.

Functions of administrative law 

In the above-mentioned discussion, it is to mention that the Administrative Law deals with several issues such as identification of administrative authorities, the power exercised by those authorities, and what limits are required to be exercised while using those powers. Further, it determines the legal liability of public servants and gives the court some powers to supervise and review the administrative authorities (srdlawnotes.com, 2019). In addition to this, the law also deals with the remedies available to innocent parties where their rights are violated. Following are some of the key functions of administrative law:-

• To make a balance between the relationship of the common man and organized power.
• To regulate and control ministry to the discretion.
• To ensure transparency and openness in the administration.
• To define the working relationship of administrative agencies such as local authority and minister.
• To develop an efficient grievance redressal system for citizens.

Conclusively to state administrative law is significant, like in absence of the same public authorities and government agencies will be free to use their rights irregularly. This law outlines a principle that although government agencies and executives have the power to make laws and to apply them, they cannot cross their limits mentioned under the constitution.

Question 2

Judicial review is yet another significant concept, which is mostly related to the administrative law and fulfills its purpose. It would not be wrong to state that without the judicial review, the objective of the administrative law cannot be served. Since the topic is highly important, therefore this section of the report will outline its meaning and its significance.

What judicial review is?

In simple words, judicial review refers to a process under which the legislative and executive actions are subject to review by the judiciary (richardbuxton.co.uk, 2020). The name of the process implies itself that the judiciary plays an important role here. Under English Law, judicial review is a part of constitutional law in which people are able to challenge the exercise of power by government or public bodies. In this way, judicial review is not a different concept but it derives its significance from the functions of administrative law, and it can be stated that this is a process which grants remedies to individuals where their rights are breached by public bodies. Section 119 of the constitution confirms power of judges to execute their jurisdiction over authority or person in respect to any question as given in different decisions linked with public statutory bodies. Vallet V Ramgoolam 1973 MR 29 is an important case where it was stated that having similar supervisory jurisdiction system is also bounded by English practice. 

To better understand this process, it is to mention that in the context of Mauritius legal system, judicial review is a process by which the Supreme Court of Mauritius exercises its “supervisory jurisdiction” over the decision and proceedings of the inferior tribunals, courts, person and other bodies that carry quasi-judicial functions or performs public duties or acts. In the case of Council of Civil Service Unions v. Minister for the Civil Service [1985] 3 All ER 935 at 949 (HL), Lord Diplock stated that “Judicial review” offers the mean by which judicial control of administrative action is exercised. Here it is necessary to state that in the case of Chief Constable of the North Wales Police v. Evans [1982] 3 All ER 141, it was provided judicial review is different from an appeal and it is only a review of the method of how the decision was made (Louis, 2009).

Judicial review does not involve the review of the merits of the decision in concern to which the application for judicial review is made but the process also includes the decision-making process itself. It is completely distinct from an ordinary appeal in this manner. In case of an appeal, the appellant tribunal substitutes its own decision whereas, in the case of judicial review, the Supreme Court quashes an administrative decision without substituting its own decision. In the case of Ramdin v. PSC [1990] SCJ 26, it was provided that it is not the function of the court to substitute itself for the respondent in concluding the appropriate punishment for an erring public officer. Further to the state that the entitlement of an appeal is a statutory one. R v. Crown Court at Carlisle, ex parte Marcus-Moore [1981] is an important case where it was stated that the main objective of judicial review is to ensure that the individual, who is a subject of authority is getting fair treatment from the same. The major duty of the court is to keep its focus on the legality of the action. Further courts are concerned with few questions such as whether a decision-making authority performed an error of law, exceeded its power, abused its power, or committed the breach of natural justice principle.

As given in the case of Hungsraz v Mahatma Gandhi Institute & ors [2008] MR 127, courts under judicial review check the process adopted to reach up to the decision and to scrutinize its alignment with all the elements of legality, reasonableness, and fairness. Judicial review allows courts to intervene only in those situations where the body concerned in a case found acting ultra vires of the allowed powers or reach a decision that is unreasonable or acted unfairly.  

Grounds and remedies of Judicial review

In the case of Council of Civil Service Unions v. Minister for the Civil Service, grounds on that an administrative action can be subject to judicial review. The first ground is “illegality” where it was provided that it becomes the responsibility of the decision-maker to correctly understand the law which regulates its power and makes it effective and if the same fails to do so then courts can hold judicial review (McGarry, 2016). The second ground allowed for the “irrationality” where the administrative body must not do any act that a reasonable body would have to perform or must not make any likewise decision. Further, such bodies must also not abuse their power. “Procedural impropriety” was given as another ground of judicial review where the same is allowed in those cases where an authority breaches rules of natural justice. In addition to the identification of these three grounds, some others can also be added later on depending on the development of subsequent cases. The remedy that may be offered under a judicial review consists of equitable as well as common law remedy. Such equitable remedy includes an injunction and common law remedies include an award of damages.  

Who can apply for judicial review?  

In Mauritius, the judicial review seems to be influenced by the English legal system. After grounds and remedies of judicial review, it is also necessary to know who can apply for judicial review. Here to state that to apply such review a person must have sufficient interest in the matter and such interest must be disclosed. It means the person who applies for judicial review must be affected by the decision (lrc.govmu.org, 2009). It was given in the case of R v Inland Revenue Commissioner, ex parte National Federation of Self-Employed and Small Businesses Ltd 1982 AC 617 that for judicial review the leave of judicial review needs to be there.

Importance of judicial review 

As judicial review provides a range of remedies and secures the rights of people who receive injustice from a pubic body hence the concept of judicial review seems to be of great importance. In the case of R (Alconbury) v Secretary of State [2001], the significance of judicial review has been outlined. In the decision of this case, Lord Hoffman provided that the principle of judicial review is useful in giving effect to the rule of law. It ensures that administrative decisions are taken rationally, fairly and reasonably. Those who are in the position of public bodies or authorities have to pursue their actions and to take decisions legally. Another importance of judicial review is that the same ensure that democracy is inclusive and everyone who exercises public power has some accountability. It rejects all the process and actions which are unconstitutional. The significance of judicial review can be understood in a way that in the absence of the same the constitution would render unenforceable. The absence of judicial review is likely to create a situation where all the public authorities and bodies will be unregulated and the rights of individual citizens will be at risk.

The main objective of the law is to regulate the behaviour of people and to ensure that no one acts in a way that can be harmful to others. This objective is not limited to the private parties but is also extended to the public authorities as their actions are likely to affect the public at large. The right-based judicial review increases the respect of the judicial system for individuals as well as for minority rights. Further federalism-based judicial review enhances procedural fairness which protects the procedural aspects of Law rules. It educates the individual about their rights. Constitution divides power under different authorities where each branch of the law has certain well-defined functions and rights. Even being separate from each other these branches remain dependent on each other and giving independence to any of them can create issues. For instance, if the judiciary would be set free then the whole judicial system will be disturbed, similarly, if the conduct of executive will be free then they would inappropriately deal with the citizens and therefore to control such issues, judicial review is significant which is there to deal with public authorities and to ensure that only making law and applying the same is not enough but the same must be used in a decided manner and no matter whether a law has been breached by a private citizen or a public body, the treatment is equal.

To conclude the discussion over the judicial review, it is to state that the work recalled the power of different branches of government and evaluated the obligation put onto them by setting a constitutional check and balance system where the activity of each administrative body remain under surveillance. Further, any person having an interest in the matter and suffer with illegal or unreasonable activity or decision may initiate an issue.

References 

Council of Civil Service Unions v. Minister for the Civil Service [1985] 3 All ER 935 at 949 (HL)

Gunputh, R., P. (2018) Constitutional And Administrative Law. University of Mauritius

Hungsraz v Mahatma Gandhi Institute & ors [2008] MR 127

Louis, P. (2009) Judicial Review. [online] Available from: http://lrc.govmu.org/English/Documents/Reports%20and%20Papers/38%20dis-pap-jud.pdf [Accessed on 03/11/2020]

lrc.govmu.org. (2009) Law Reform Commission. [online] Available from: http://lrc.govmu.org/English/Documents/Reports%20and%20Papers/38%20dis-pap-jud.pdf [Accessed on 29/10/2020]

McGarry, J. (2016). Intention, Supremacy and the Theories of Judicial Review. Oxon: Routledge.

North Wales Police v. Evans [1982] 3 All ER 141

R (Alconbury) v Secretary of State [2001]

R v. Crown Court at Carlisle, ex parte Marcus-Moore [1981]

Ramdin v. PSC [1990] SCJ 26

richardbuxton.co.uk. (2020) Judicial review process. [online] Available from: https://www.richardbuxton.co.uk/the-law/judicial-review-process [Accessed on 29/10/2020]

rkb-law.co.uk. (2020) What is the Difference Between Public and Private Law?. [online] Available from:https://rkb-law.co.uk/what-is-the-difference-between-public-and-private-law/#:~:text=Public%20law%20is%20regulation%20of,between%20two%20or%20more%20people [Accessed on 29/10/2020]

srdlawnotes.com. (2019) Meaning Definition and main functions of Administrative law. [online] Available from: https://www.srdlawnotes.com/2019/01/meaning-definition-and-main-functions.html [Accessed on 29/10/2020]

Vallet V Ramgoolam 1973 MR 29