The aim of this essay is to distinguish judicial review from an appeal.

It will begin by explaining

judicial review and distinguishing it from an appeal. Thereafter, it will discuss the importance of
judicial review in the administrative process in governance. Lastly a conclusion shall be drawn.

Judicial review is the legal process through which an individual may challenge the legality of the
way in which any of these powers has been used. An application for judicial review is made to
the High Court.1 Traditionally applications for judicial review were founded on allegations that
an authority had acted either ultra vires (i.e. beyond its powers) or in breach of the rules of
natural justice (the common law rules of procedural fairness). 2A public body acts ultra vires if it
does that for which it had no legal authority either in statute or common law. It acts in breach of
the rules of natural justice if, in making a decision, it contravenes any of the procedural rights the
common law accords to a person affected by the exercise of a decision-making power. In either
case such misuse of power will result in a finding that the body’s actions were void ab initio, i.e.
of no legal effect from the beginning.3

Judicial review is given further justification and definition by the requirements of the rule of law.
Judicial review may be further understood as an expression of, and as being underpinned by, the
doctrine of the separation of powers. It is an expression of the doctrine in that it represents one of
the principal ‘checks and balances’ developed by the constitution to guard against abuse of
power. Judicial review is underpinned by the separation of powers in that its effectiveness and
credibility depends on the existence of an independent and impartial judiciary. A judiciary
subject to executive influence could not be relied upon to act as an impartial arbiter in disputes
involving the individual and the state.4

Article 94 of the Constitution of Zambia in essence provides for the scope of Judicial review of
administrative actions amongst others by stating that the High Court has unlimited and original
jurisdiction to hear and determine any civil or criminal proceedings under any law. 5 Further,
Judicial Review is a procedure available only in disputes raising questions of public law. That is

1
Alex Carrol, Constitutional and Administrative Law. (Pearson Education Limited: Harlow, 2009)
2
Alex Carrol, Constitutional and Administrative Law.
3
Alex Carrol, Constitutional and Administrative Law.
4
Stott David, Principles of administrative law. (Cavendish Publishing Limited: London, 1997)
5
Constitution of The Republic of Zambia Cap 1 of the Laws of Zambia

Page 1 of 12
to say, that the Courts must before an application can succeed be satisfied that the respondent is a
public authority and that the right at issue is a public right.6

However, the availability of another remedy may be relevant in one of two ways to an
application for judicial review. First, the court may decide that the alternative remedy is the
exclusive remedy by law and there is no jurisdiction to grant review. 7 Secondly, more commonly
the existence of an alternative remedy is a factor to be taken into account by the court in deciding
whether, in its discretion, to grant relief. This is clearly illustrated in the case of R V Inland
Revenue Commissioners, ex parte Preston,8where it was held that Judicial Review should not be
granted where an alternative remedy is available. Generally, the courts are reluctant to intervene
where parliament has provided a comprehensive appellate system.

Furthermore, there are certain requirements or criteria as it were, that need to be met for one to
apply successfully for Judicial review. Firstly, as was held in the case of Frederick Jacob Titus
Chiluba V Attorney-General9 the remedy of 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.

In relation to standing to sue, Order 5310 of the Rules of the Supreme Court of England in Rule
3(1) and 3(7) provides that an application for Judicial Review will not be entertained by the courts
unless leave is sought first and that such leave can only be granted if the court considers that the
applicant has sufficient interest in the matter to which the application relates. For a decision to
amenable for judicial review the following has to be met: (1) the decision maker is a public body
or should have public authority: (2) the decision, will, if validly made, lead to administrative
action which will affect the applicant: (3) the applicant should have standing in matter. 11
Furthermore, one has to rely on grounds for judicial review in court. In R v. City Panel on
Takeovers and Mergers ex parte Datafin Limited,12 City Panel had dismissed a complaint by a
bidder of acting in concert contrary to the rules on takeovers. The bidders applied for judicial

6
P. Jackson & P. Leopold. Constitutional and Administrative Law (Sweet & Maxwell, 8th ed, 2001 ) at page726
7
P. Jackson & P. Leopold. Constitutional and Administrative Law page727
8
(1984) 3 All ER 625
9
Appeal No 125 of 2002
10
Rules of the Supreme Court of England (1999 Edition)
11
Alex Carrol, Constitutional and Administrative Law.
12
(1987) QB 815

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review. The Court declined to grant the application on the basis that there were no grounds for
judicial review, but nevertheless, rejected the claim made by the City Panel, that the Court had no
jurisdiction to consider the application.

The Grounds for judicial review were established in by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service: 13in which stated thus:-

Judicial review has I think developed to a stage today when... one can conveniently
classify under three heads the grounds on which administrative action is subject to
judicial review, The first ground I would call “illegality” the second “irrationality and
the third “procedural impropriety.” That is not to say that further development on case
by case basis may not in the course of time add further grounds... By “illegality” as a
ground for judicial review I mean that the decision maker must understand correctly the
law that regulates his decision making power and must give effect to it. Whether he has
or has not is par excellence a justifiable question to be decided by, in the event of dispute,
by those persons, the judges, by whom the judicial power of the state is exercisable. By
“irrationality” I mean what can now be succinctly referred to as Wednesburry
unreasonableness”. It applies to a decision which is so outrageous in its defiance of
logic or accepted moral standard that no sensible person who had applied his mind to the
question to be decided could have arrived at it. Whether a decision falls within this
category is a question that judges by their training and experience should be well
equipped to answer, or else there should be something badly wrong with our judicial
system... I have described the third head as “procedural impropriety” rather than failure
to observe basis 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 of judicial
review under this head also covers failure by an administrative tribunal to observe
procedural rules that are expressly laid down ... even where such failure does not involve
any denial of natural justice.

From the foregoing the grounds for judicial review can be summed up as follows: ‘Illegality’,
‘Irrationality’, and ‘Procedural Impropriety’.

Illegality entails that the decision maker must understand correctly that the law regulates his
decision making power and give effect to it. The court will strike down a decision if it is illegal
or contrary to the law. In Malone v Metropolitan Police Commissioner,14 Sir Robert Megarry
V.C. permitted telephone tapping by the police on the ground that England ‘‘is not a country
where everything is expressly permitted; it is a country where everything is permitted except
13
[1985] AC 374
14
[1979] Ch. 344 at 357.

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what is expressly forbidden’’. The European Court of Human Rights subsequently held that the
actions of the police violated Article 8 of the European human Rights Convention.

Irrationality 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 question to be decided could
have arrived at it. In Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 15
the council had power to grant licenses for Sunday entertainment subject to such conditions as it
thought fit; it licensed a cinema subject to the condition that no child under 15 be admitted. It
was held that this exercise of discretion was not such that no other reasonable authority would
have done the same.

Furthermore, the circumstances under which the courts can review the exercise of a decision-
makers’ discretion on substantive grounds (that is, those not involving just questions of
procedure or powers) are limited, and vary as between “human rights” and “ordinary” cases.16

In cases not involving human rights issues, the “intensity” of the courts’ review is likely to be
low if, for example, a decision is concerned with general economic or social policy, particularly
if it depends on political judgement. The margin of appreciation or discretion for the decision-
maker is therefore correspondingly wide. That means that the courts are likely to be very hesitant
to find a decision in such an area is “irrational”. But they will look at a range of factors in
determining the intensity of their review, including: (1) the nature of the executive power; (2) the
importance of rights or interests affected; (3) the decision-makers level of expertise; (4)whether
the decision-makers decision was final, or could be internally reviewed. However, in human
rights cases, the intensity of the courts’ review is likely to be high. Depending on the importance
of the right in question, the decision-makers margin of appreciation may thus be very narrow or
there may be no margin at all.17

Procedural Impropriety is a 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. For example article
98(3)18 of the Constitution, Chapter 1 of the Laws of Zambia provides that if the President
considers that the question of removing a judge of the Supreme Court or of the High Court under
15
[1948] 1KB 228, [1947] 2 All ER 680.
16
Carol Harlow and Richard Rawlings, Law and Administration. (Cambridge University Press: New York, 2009)
17
Carol Harlow and Richard Rawlings, Law and Administration.
18
Constitution, art 98(3)

Page 4 of 12
this Article ought to be investigated, then he shall appoint a tribunal which shall inquire into the
matter. In the event that the president fires a judge without following the laid down procedures,
the aggrieved party can challenge his decision on the grounds of procedural impropriety.

However the courts are still at liberty to come up with new grounds of appeal such as
proportionality. This ground has not been fully developed in the Zambian Jurisdiction. Lord
Diplock, in the case of Council of Civil Service Unions v Minister of State for the Civil Service
stated that it is trite that proportionality is emerging as the fourth ground. The Supreme Court of
Zambia in M’membe and Another v The People 19 cited this dictum with approval: In De Smith,
Woolf and Jowel on Judicial Review of Administrative Action, the principle of proportionality”
has been defined at page 594, paragraphs 13-070 as:

“Requiring an administrative authority when exercising discretionary powers to

maintain a proper balance between any adverse effects which its decision may have on
the right, liberties or interests of person and the purpose which it pursue.”

The Court of Appeal in Hong Kong in the case of Gurung Kesh Bahad v Director of
Immigration20 held that assuming proportionality is a three-stage test. Firstly, is the legislative
objective sufficiently important to justify limiting a fundamental right? Secondly, are the
measures designed to meet the objective rationally connected to it? Thirdly, are the means used
to impair the right no more than necessary to accomplish the objective? Furthermore, in Roy
Clarke v the Attorney General21 it was stated that:

“whether or not explicitly applied, proportionality provides an implicit explanation for

some of the existing judicial interventions under the guise of Wednesbury
unreasonableness”.

To some degree the grounds of review are not static in the sense that the content or ambit of
certain grounds of review and whether they establish jurisdictional error remains the subject of
varying opinions in different countries. For example, the decision in Re Minister for
Immigration and Multicultural Affairs; Ex parte Applicant 22 provides support for the view that
Wednesbury unreasonableness does not embrace challenges to fact finding or to statutorily

19
(1997) S. J. 63
20
(2002) 5 HKCFAR 480
21
Appeal No. 96A/2004
22
S20/2002 (2003) 198 ALR 89

Page 5 of 12
mandated conclusions but applies only to decision makers’ discretionary decisions. On the other
hand, the decision of the court in Minister for Immigration and Indigenous Affairs v SGLB23
provides authority for the view that irrationality and illogicality are different concepts and that
only the latter can apply to the fact finding component of a decision. This approach is at odds
with the approach taken in other cases, such as Minister for Aboriginal Affairs v Peko Wallsend
Ltd24 where unreasonableness, irrationality and illogicality are regarded as interchangeable
concepts.

Six remedies may be sought in proceedings for judicial review namely: certiorari, prohibition,
mandamus, declaration, injunction and damages.25 In the case of R V Bolton Justices, ex parte
Scally and other applications,26 Certiorari may be ordered to quash a decision for excess or lack
of jurisdiction, error of law on the face of the record, unfairness and breach of the rules of natural
justice, or decisions made in bad faith or produced by fraud or perjury. An applicant will often
seek orders of certiorari and mandamus together, certiorari to quash an unlawful decision, with
mandamus to compel the public body to re-take that decision in accordance with the law. This is
illustrated in the case of The People v. The Attorney General, ex parte Derrick Chitala,27where
the applicant applied for certiorari to quash the decision by the government to have the
constitution enacted by parliament and mandamus to compel the government to have the
constitution brought into effect by way of constituent assembly and referendum as recommended
by the Constitution Review Commission.

Judicial review of administrative decisions is different from an administrative appeal. When a

party to a decision of the court is not satisfied with the verdict and decides to appeal against the
decision, it is said to be an appeal. There are always people who feel cheated or disappointed by
a verdict of the court. These people seek relief from the judgment as they appeal in a higher court
of law for the reversal or modification of the verdict. An appeal is, therefore, a plea for a second
judgment on the same matter by the aggrieved party. In most judicial systems, an appeal is
considered a right of the people and a tool to seek redressal if a party feels it has been wronged
by the decision of the court. An appeal is always preferred in a higher court of law. In case an
23
(2004) 207 ALR 12
24
(1986) 162 CLR 24
25
Wade. E.C.S, Constitutional and Administrative Law, (London, Longman Publishing Group, 1977)
26
(1991) 2 All ER 619
27
SCZ Judgment No, 14 of 1995.

Page 6 of 12
appeal fails, a second appeal can be filed. An appeal is always filed by one of the concerned
parties.28

When sitting in review of a decision, the Court will only look at the method in which the
decision was arrived at, whereas in an administrative appeal the correctness of the decision itself
will be examined, usually by a higher body in the agency. 29 This difference is vital in
appreciating administrative law in common law countries. In other words judicial review is
different from an appeal. The distinction is that an appeal is concerned with the merits of the
decision under appeal while judicial review is concerned only with the legality of the decision or
act under review.30

In a nutshell judicial review is mostly concerned with the correctness of the legal matters of a
decision whereas an appeal is mostly concerned with the correctness of the decision itself.
Judicial review is filed in the same court whereas appeal is filed in a higher court. An appeal is a
statutory right of the individual whereas review is a discretionary right of the court. Procedural
irregularity, impropriety, irrationality, and illegality form the basis of a review whereas there can
be grounds of dissatisfaction or disappointment for filing an appeal. Lastly, an appeal is a request
to change or modify the decision or verdict whereas judicial review is a request to look into the
legality of the ruling.

The importance of judicial review is to ensure a good administrative justice system. Which
should comprise the following:31 Make users and their needs central, treating them with fairness
and respect at all times; Enable people to challenge decisions and seek redress using procedures
that are independent, open and appropriate for the matter involved; keep people fully informed
and empower them to resolve their problems as quickly and comprehensively as possible; lead to
well-reasoned, lawful and timely outcomes; be coherent and consistent; Work proportionately
and efficiently; and adopt the highest standards of behaviour, seek to learn from experience and
continuously improve.

28
http://www.differencebetween.com/difference-between-appeal-and-vs-review/#ixzz3AYQDbMSM (accessed
16/08/2014)
29
http://www.differencebetween.com/difference-between-appeal-and-vs-review/#ixzz3AYQDbMSM (accessed
16/08/2014)
30
Judicial Review | English Legal System | Law Teacher http://www.lawteacher.net/english-legal-system/lecture-
notes/judicial-review.php#ixzz3AYPRUqNq (accessed 16/08/2014)
31
Alex Carrol, Constitutional and Administrative Law.

Page 7 of 12
When people talk about what constitutes ‘good governance’ they usually use terms that reflect
the best elements of a liberal democracy.32 So it was for Rose Verspaandonk,33 a notable
contributor on public service accountability issues over many years, who in an Australian
Parliamentary Library paper said the following could be said to be manifestations of good
governance: accountability; democracy; efficient and effective administration and program
delivery; equal rights for all citizens; ethical use of public resources and authority; individual
liberty; participation; rule of law, and transparency.

The three arms of government, the executive, the parliament and the judiciary, are, in different
ways, guided by such principles. Administrative law, which is concerned with the rules and
institutions that regulate the exercise of governmental power, is fundamentally concerned with
good governance.

This paper focuses on the fundamental role that both merits review and judicial review play in
promoting good governance, through their impact on accountability and transparency of
administrative action, in promoting adherence to the rule of law and expanding access to
administrative justice for individuals. It is important to note, in this rights-conscious age, that
administrative law review processes are about more than just the rights of citizens to contest
decisions affecting them, although this is important. However, the value of administrative law
review processes is wider than the sum of particular decisions affecting individuals. It is also
vital to promoting the rule of law within administrative agencies and accountability in
government administration more generally.

While judicial review is a foundational requirement for good governance, the provision of merits
review, which because of its less formal and costly settings may be made much more broadly
available to individual complainants, may have greater impact at the level of equitable access to
administrative justice. In marked contrast to judicial review, merits review involves ‘stepping
into the shoes’ of the original decision-maker and remaking the decision according to the merits
of the individual case. The focus of merits review is to ensure that the decision under
32
http://www.lawlink.nsw.gov.au/lawlink/corporate/ll_corporate.nsf/vwFiles/
040811_ag_speech_Admin_law_seminar.pdf/$file/040811_ag_speech_Admin_law_seminar.pdf (accessed
16/08/2014)
33
Research Note11 2001-02, Good Governance in Australia, 25 September 2001,
http://www.aph.gov.au/library/pubs/rn/2001-02/02rn11.htm 2 Commonwealth Administrative Review Committee
Report (accessed 16/08/2014)

Page 8 of 12
consideration is the ‘correct and preferable’ one, that is, that it has been made according to law
and is the best that could have been made on the basis of relevant facts. This assessment
considers the interests of the individual applicant alongside the interests of all those affected by a
decision.34

Generally speaking, merits review is provided through internal review inside the government
agencies that make decisions, or by external review in a tribunal setting. Where it is available,
merits review is almost always a more accessible and cost-effective means of challenging and
administrative decision than judicial review. Merits review promotes good governance because
it:35

 Promotes access to justice by providing a remedy for aggrieved individuals: Merits

review is a powerful remedy for individuals, who are aggrieved by administrative
decisions affecting their personal interests. Merits review permits a much wider
consideration of the issues than judicial review and at considerably less cost.
 Promotes the rule of law, by promoting better decisions-making in the first instance:
Effective external merits review can provide oversight over internal agency decision-
making (including internal review) to ensure that decisions are consistent both within the
agency and across government and to identify any systemic issues.
 Encourages executive accountability: There is evidence from the Commonwealth that
administrators see external merits review as particularly effective in encouraging
accountability in decision making.36

From the foregoing it is clear that it is axiomatic that to render public power accountable, there
must be controls by way of legal doctrine to determine whether the power has been used for an
improper purpose so as to keep the relevant body within its assigned sphere of power. However,
this still leaves a plethora of issues such as debated concerning the criterion for jurisdictional

34
http://www.lawlink.nsw.gov.au/lawlink/corporate/ll_corporate.nsf/vwFiles/
040811_ag_speech_Admin_law_seminar.pdf/$file/040811_ag_speech_Admin_law_seminar.pdf (accessed
16/08/2014)
35
http://www.lawlink.nsw.gov.au/lawlink/corporate/ll_corporate.nsf/vwFiles/
040811_ag_speech_Admin_law_seminar.pdf/$file/040811_ag_speech_Admin_law_seminar.pdf (accessed
16/08/2014)
36
http://www.lawlink.nsw.gov.au/lawlink/corporate/ll_corporate.nsf/vwFiles/
040811_ag_speech_Admin_law_seminar.pdf/$file/040811_ag_speech_Admin_law_seminar.pdf (accessed
16/08/2014)

Page 9 of 12
review, the test for misuse of power where the public body pursues multiple purposes.
Resolution of these issues will entail normative assumptions.

In conclusion, judicial review is the legal process through which an individual may challenge the
legality of the way in which any of these powers has been used. Under judicial review, the Court
will only look at the method in which the decision was arrived at, whereas in an appeal process
the correctness of the decision itself will be examined, usually by a higher body court. In other
words an appeal is concerned with the merits of the decision under appeal while judicial review
is concerned only with the legality of the decision or act under review. Lastly, the importance of
judicial review is to ensure a good administrative justice system.

BIBLIOGRAPHY

Page 10 of 12
BOOKS

Alex Carrol, Constitutional and Administrative Law. Pearson Education Limited: Harlow, 2009

Carol Harlow and Richard Rawlings, Law and Administration. Cambridge University Press:
New York, 2009

P. Jackson & P. Leopold. Constitutional and Administrative Law, Sweet & Maxwell, 8th ed,
2001

Stott David, Principles of administrative law. Cavendish Publishing Limited: London, 1997

CASES

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1KB 228, [1947]
2 All ER 680.

Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374

Frederick Jacob Titus Chiluba V Attorney-General Appeal No 125 of 2002

Gurung Kesh Bahad v Director of Immigration (2002) 5 HKCFAR 480

M’membe and Another v The People (1997) S. J. 63

Malone v Metropolitan Police Commissioner [1979] Ch. 344 at 357.

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Indigenous Affairs v SGLB (2004) 207 ALR 12

R V Bolton Justices, ex parte Scally and other applications (1991) 2 All ER 619

R V Inland Revenue Commissioners, ex parte Preston (1984) 3 All ER 625

R v. City Panel on Takeovers and Mergers ex parte Datafin Limited (1987) QB 815

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant, S20/2002 (2003) 198
ALR 89

Page 11 of 12
Roy Clarke v the Attorney General Appeal No. 96A/2004

The People v. The Attorney General, ex parte Derrick Chitala SCZ Judgment No, 14 of 1995.

LEGISLATION

Order 53 of the Rules of the Supreme of England (1999) Edition

The Constitution, Chapter One of the Laws of Zambia

INTERNET SOURCES

http://www.differencebetween.com/difference-between-appeal-and-vs-review/
#ixzz3AYQDbMSM (accessed 16/08/2014)

http://www.lawlink.nsw.gov.au/lawlink/corporate/ll_corporate.nsf/vwFiles/
040811_ag_speech_Admin_law_seminar.pdf/$file/040811_ag_speech_Admin_law_seminar.pdf
(accessed 16/08/2014)

Judicial Review | English Legal System | Law Teacher http://www.lawteacher.net/english-legal-

system/lecture-notes/judicial-review.php#ixzz3AYPRUqNq (accessed 16/08/2014)

Research Note11 2001-02, Good Governance in Australia, 25 September 2001,

http://www.aph.gov.au/library/pubs/rn/2001-02/02rn11.htm 2 Commonwealth Administrative
Review Committee Report (accessed 16/08/2014)

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