write an essay on judicial review of industrial awards

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Interim or Final Determination

Judicial Review of Industrial Award

Judicial Review of Industrial Award:

Sec. 2(b) ofthe I.D.Act defines the term as follows “award” means an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Sec. 10-A.” Section 10A, was added to the Industrial Disputes Act of 1947 providing an option to the parties to refer their industrial dispute to an arbitration of their choice.

The Supreme Court in Cox & Kings (Agents) Ltd. v. Their Workmen laid down a two-fold test for a decision of the Tribunal to fall within the definition of award. First, it must be an adjudication of a question or point relating to the industrial dispute, which has been specified in the order of reference, or is incidental thereto; and secondly, such adjudication must be on merits. The word ‘determination’ also implies that the adjudicator has to adjudicate upon the whole dispute as referred to him. The adjudicator cannot determine only part ofthe dispute, by leaving the rest to be determined by the parties.

Section 30(1) of the Act enables the Industrial Court to hand down an award relating to all or any of the issues raised in a trade dispute referred to it or a reference to it by a Minister for an award. The Industrial Court’s award determines the rights of the parties and is accordingly binding on them. The Industrial Court has a wide discretion on the relief that it may grant to the successful party. The main relief is monetary compensation for loss of employment. The Industrial Court’s award includes 24 months of back wages and one month’s salary for every year of service. Alternatively, in proper cases, the Industrial Court may order rein-statement.

Interim or Final Determination:

The expression determination of any dispute means an adjudication of the dispute on merits.The word interim means when a particular issue is decided out of other issues and report is submitted on that particular issue , it is known as interim determination. When a reference is dismissed for default of appearance ofworkmen, who claimed the relief, or of both the parties, the order ofthe adjudicator cannot take the form of an award, although the proceedings have been terminated.

Sec. 16 (2) ofthe Act simply states, “the award of a Labour Court, Tribunal or National Tribunal shall be in writing and shall be signed by the presiding officer”. No particular form is prescribed. Usually, an award contains two parts, namely, recitals and the operative part. Although, it is not necessary for its validity that it should contain an introduction, it is normally added for the sake of clarity. Sometimes, it may be difficult to understand the operative part without some preliminary explanation. Therefore, generally the ward contains recitals giving particulars about the dispute. The operative part of the award is the actual decision of the adjudicator upon the matters in dispute under reference. It is the essential part ofthe award. The award must be certain and consistent in all its parts. The award must cover all the points referred to it for adjudication

SC in the case of Ram Avtar Sharma and Ors.Vs.State of Haryana and Anr. The brief facts of the case were that the government has refused to refer the dispute here on the grounds that it was satisfied that the punishments inflicted on the workers were according to the rules and regulations. Dealing with the situations in which the court are armed with the power to review the order of refusal of reference the court held that the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony.

Posted By: Adv. Tanvi G. | Posted on: Sep 24, 2020 | Category: Legal profession Others | Tag:

THE MODE TO CHALLENGE AN INDUSTRIAL COURT AWARD: APPEAL OR JUDICIAL REVIEW

September 27, 2023 > Malaysia > EMPLOYMENT LAW

INTRODUCTION

Recently, the High Court of Penang has resolved the confusion on the correct mode to challenge an Industrial Court Award in the High Court by interpreting Sections 33C and 20(3) of the Industrial Relations Act 1967. This decision by Justice Anand Ponnudurai in Aneka Retail (M) Sdn Bhd v Industrial Court Malaysia & Ors explained the correct mode to challenge an Industrial Court Award in the High Court.

BACKGROUND FACTS

The two Respondents were former employees of the Applicant company. In April and May 2020, they did not receive their salaries at all and accordingly, they contended that they have been constructively dismissed from 8.6.2020. The Respondents made their representations pursuant to Section 20 of the Industrial Relations Act 1967 (“ the IR Act ”). The dispute was then referred to the Industrial Court by the Minister of Human Resources (“ the HR Minister ”) by a letter dated 6.1.2021 pursuant to Section 20(3) of the 1967 Act. The Industrial Court held the Respondents were constructively dismissed due to fundamental breaches of their employment contract and awarded back wages and compensation. The Applicant filed an application pursuant to Order 53 of the Rules of Court (“ the ROC ”) 2012 for leave to apply for an order of certiorari to quash the Industrial Court Award Nos. 1630 of 2022 and 1631 of 2022, both dated 25.7.2022. The application for leave was met with objection by the Attorney General’s Chambers (“ the AGC ”) on the grounds that the Applicant should instead file an appeal under Section 33C of the 1967 Act.

ISSUES Whether the Applicant had correctly utilised judicial review proceedings or ought to have filed an appeal under Section 33C of the IR Act as amended.

Essentially, the Industrial Relations (Amendment) Act 2020 (“ the 2020 Amendment Act ”) introduced several amendments to the principal IR Act which took effect on 1.1.2021. The amendments are, amongst others, as follows:

The amendment of Section 20(3) of the IR Act removed the HR Minister’s discretion to refer any representation for unfair dismissal of a workman to the Industrial Court. Instead, the Director General of Industrial Relations (“the DG”) shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled; and
The insertion of Section 33C of the IR Act which allows the party dissatisfied with the Industrial Court Award to appeal to the High Court.

Section 33C of the IR Act ( Appeal against an award to the High Court ) provides as follows:

If any person is dissatisfied with an award of the Court made under section 30 such person may appeal to the High Court within fourteen days from the date of receipt of the award.
The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 [P.U.(A) 205/2012] for an appeal from a Sessions Court with such modifications as the circumstances may require.
In dealing with such appeals, the High Court shall have like powers as if the appeal is from the Sessions Court.

DECISION OF THE HIGH COURT

The objection taken by the AGC was that Section 33C of the amended IR Act should apply as the HR Minister’s reference (dated 6.1.2021) and the Industrial Court Award (dated 25.7.2022) were made after the amendment introduced by the 2020 Amendment Act (effective 1.1.2021).

In dismissing the AGC’s objection and granting leave to the Applicant, the High Court held that the Applicant had correctly commenced the proceedings by way of judicial review. Prior to the amendment introduced by the 2020 Amendment Act, any party aggrieved by the Industrial Court Award would utilise judicial review proceedings to quash an Industrial Court Award. Subsequent to the amendment (effective 1.1.2021), Section 33C of the IR Act states that any person dissatisfied with the Industrial Court Award may appeal to the High Court. Further, the 2020 Amendment Act has also amended Section 20 of the IR Act in that the HR Minister’s discretion to refer the workman’s unfair dismissal representation to the Industrial Court for an award has been removed. Instead, the DG shall refer the representations to the Industrial Court for an award where he is satisfied that there is no likelihood of the representations being settled. Therefore, the High Court opined that if the representation was referred to the Industrial Court by the DG, then an appeal ought to be filed under Section 33C of the IR Act to challenge any Industrial Court Award. On the other hand, if the representation was referred by the HR Minister, then judicial review would be the proper application. In this present case, the date of the HR Minister’s letter, i.e. 6.1.2021, is irrelevant as it was the HR Minister who was exercising his discretion in referring the representation. Further, the High Court referred to the saving and transitional provision in Section 35 of the 2020 Amendment Act and held that the Applicant was entitled to utilise judicial review proceedings as if the IR Act has not been amended.

Section 35 of the 2020 Amendment Act ( Saving and transitional provisions ) is reproduced as follows:

Complaints made under section 8, disputes referred under subsection 9(1A), claims for recognition made under section 9, representations for reinstatement made under section 20 of the principal act , and all proceedings commenced or awards made before the Industrial Court in relation to a reference under subsection 8(2A), subsection 20(3) and section 26 before the coming into operation of this act shall proceed and have effect as if the principal act had not been amended by this act .
All rules and regulations, forms, directions and letter of authorizations made, issued or granted under the principal act shall, to the extent that the rules and regulations, forms, directions and letter of authorizations are consistent with the principal act as amended by this act, continue to be in force until such rules and regulations, forms, directions and letter of authorizations are revoked or amended.
Any investigation, trial or proceedings done, taken or commenced under the principal act immediately before the coming into operation of this act, shall be dealt with as if the principal act had not been amended by this act.

It is undisputed that the representations were made by the Respondents in 2020 prior to the amendments taking effect. Thus, the High Court, in applying Section 35 of the 2020 Amendment Act, opined that the Applicant was entitled to proceed via judicial review proceedings as if the IR Act had not been amended by the 2020 Amendment Act. Accordingly, the High Court dismissed the objection taken by the AGC.

KEY TAKEAWAYS

In determining the proper mode to challenge an Industrial Court Award in the High Court, the relevant factor would be to look at who had referred the representation to the Industrial Court. The fact that the HR Minister’s reference was made after the amendment is irrelevant in determining the correct mode of challenge in the High Court. If the reference was made by the HR Minister, this meant that the HR Minister had exercised his powers under Section 20(3), pre-amendment and therefore, the mode of challenge would be by way of judicial review and not by way of appeal (post-amendment).

In any event, Section 35 of the 2020 Amendment Act allows the dissatisfied party to proceed via judicial review proceedings provided the representation was made before the 2020 Amendment Act takes effect.

Authors: Wong Keat Ching(Partner), John Bong Peng Chung (Pupil-in Chambers)

More from Zul Rafique & Partners

Appealing Against Industrial Court Decisions

by Donovan & Ho | September 5, 2018 | Employment Law

write an essay on judicial review of industrial awards

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The tail end of an unfair dismissal case is the issuance of a court award (“ Award ”) which sets out the Industrial Court’s decision and the grounds for the decision with reference to evidence adduced in trial. In an unfair dismissal case, there is only one “winner” – the unfair dismissal claim is either allowed, or it is dismissed.

What happens if the losing party is dissatisfied with the Industrial Court’s decision?

Unlike in the civil courts, litigants do not have an automatic right to appeal. This is enshrined through Section 33B of the Industrial Relations Act 1967 which states that an award, decision or order of the Industrial Court is final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called into question in any court.

That being said, the Courts have since held that Section 33B of the IRA does not oust the inherent supervisory power of the High Court to quash Awards which are made without or in excess of jurisdiction, or where the Industrial Court has done or failed to do something which rendered its decision a nullity.

As such, it is possible for a dissatisfied party to apply to the High Court to review an Award of the Industrial Court, under a mechanism known as “judicial review”.

What is judicial review?

In judicial review proceedings, an Award of the Industrial Court can be quashed (ie: set aside) through certiorari , if for example:

the facts do not support the conclusion arrived at by the Industrial Court;
the finding of the Industrial Court had been arrived at by taking into consideration irrelevant matters;
the Industrial Court failed to consider fundamental relevant matters;
the Industrial Court asked itself the wrong legal question or applied the wrong legal test/principles;
the Industrial Court misapplied the law or statute;
the Industrial Court acted outside of its jurisdiction or powers; or
the Industrial Court has come to a decision which is so unreasonable that no other Court faced with the same circumstances could arrive at the same conclusion

The concept of judicial review is therefore fundamentally and legally distinctive from an “appeal” as the Court is not so much concerned with the merits of the decision, or whether it is the “right” decision, but rather whether the Industrial Court had adopted the correct decision-making process.

How does the judicial review process work?

The procedure for judicial review is set out in Order 53 of the Rules of Court 2012.

An application for judicial review must be filed within 3 months from the date the Award was first communicated to the applicant. It is a two stage process – the applicant must first obtain “leave” (ie permission) from the Court before the applicant can proceed to the judicial review hearing proper.

In some situations, if leave is granted, the High Court may also grant a “stay” of the Award pending disposal of the judicial review proceedings. A “stay” order is where parties do not need to comply with the Award. For example, if the Award was in favour of the employee but a stay of the Award is granted, the employer does not have to pay the compensation awarded to the employee under the Award until the judicial review is determined. A stay is granted only if there are special circumstances to warrant it.

Once leave is granted, parties will be directed to file their affidavits to set out their respective positions. Witnesses are not required to testify in judicial review proceedings, except in very rare circumstances where the Court orders for cross-examination of a deponent of an affidavit.

After affidavits are completed, the judicial review application will be heard before a High Court judge who will thereafter deliver his/her decision.

Some examples of judicial review

The application of judicial review upon Industrial Court Awards can be seen in numerous case laws.

In General Electric International Inc v Mohanjit Lubana & Anor [2018] MLJU 749, the Industrial Court found in favour of an employee who was retrenched. Upon a judicial review application filed by the company, the High Court quashed the decision of the Industrial Court on the basis that it had failed to consider that the global reformation of the Company’s structure had led to the employee’s duties and responsibilities being made redundant in Malaysia.

In Ambank (M) Berhad v Zaini Ibrahim & Anor [2016] 6 MLRH 91, the High Court upheld the decision of the Industrial Court which found that a Claimant terminated for alleged misconduct was unfairly dismissed. However, the High Court varied the remedy awarded by reducing the back wages awarded by 20%, as the Industrial Court failed to take into account the Claimant’s contributory conduct which warranted a reduction.

An alternative to “appeal” against an Industrial Court Award

Another method of “appealing” against an Award is made available under Section 33A of the IRA, whereby a party can apply to refer a question of law arising out of an Award, to the High Court. This application must be made to the Industrial Court within 30 days from the date the Award is made. If the Industrial Court decides to refer questions of law to the High Court, compliance with the Award will be stayed pending disposal of the reference, and the reference will take the form as if it were an appeal against the Award.

However, this method is not as common as the judicial review process, since the threshold to justify a reference is higher. An applicant must demonstrate to the Industrial Court that the question of law sought to be referred arose in the course of proceedings, has affected the Award, and is of sufficient importance to merit such a reference. The procedure for referring a question of law is also more cumbersome, since the party must first get the Industrial Court to agree that a question of law needs to be referred. The reference is then made by the Industrial Court (and not the applicant directly), which means the timeline is out of control of the applicant.

This article was written by Donovan Cheah (Partner) and Amirul Izzat Hasri (Associate) from the employment law and dispute resolution practice group of Donovan & Ho. Donovan & Ho has been recognised by the Legal 500 Asia Pacific 2017 & 2018 and Benchmark Litigation 2018 as a leading firm for labour and employment.

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Industrial Court Award, The Final Frontier?

By alliff benjamin & zhafir rahmat ~ 14 april 2020.

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Contributed by:

Alliff Benjamin Suhaimi (Partner)

Tel: 603-6201 5678 / Fax: 603-6203 5678 Email: [email protected] Website: www.thomasphilip.com.my

Zhafir bin Rahmat (Associate)

Tel: 603-6201 5678 / Fax: 603-6203 5678

Email: [email protected] Website: www.thomasphilip.com.my

At the end of an employment dispute, an Industrial Court will render an Award in favor of either the employee or the employer. What happens after the Industrial Court award? Is there an avenue to challenge or appeal against the Award?

Section 33B of the Industrial Relations Act 1967 provides that an Industrial Court Award is final and shall not be challenged, appealed against, reviewed, quashed or called into question by any court.

However, the Federal Court in the case of R Rama Chandran v The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145 has held that even when the Act has described an Award is final, the High Court can still intervene to quash an Industrial Court Award in appropriate cases. This can be done by way of a Judicial Review application.

The Judicial Review Process

The jurisdiction of the High Court in a normal Judicial Review application is purely supervisory in nature. In other words, the High Court is confined to supervise and/or review the decision-making process of a public body and/or inferior tribunals, not the decision itself.

In a Judicial Review application, the High Court can grant public law reliefs such as mandamus , prohibition quo warranto and certiorari , or for any others, for the enforcement of any of the rights conferred by the Federal Constitution against the decision that is under review.

The necessary requirements and procedures for a Judicial Review application are provided in Order 53 of the Rules of Court 2012 , the Schedule of the Courts of Judicature Act 1964 and Part 2 of the and Specific Relief Act 1950 .

For a Judicial Review application to review an Industrial Court Award, the unsatisfied parties (applicant) would usually seek to quash the Award by way of certiorari . The applicant can also seek a mandamus to compel the other party to do something or even to seek damages.

The party seeking Judicial Review must prove that the decision-making process adopted by the Industrial Court is tainted by any of the following:

a. Illegality is when the decision or conduct of the industrial court is ultra vires or beyond the limits of the Industrial Relations Act 1967 and/or the law;

b. Irrationality is when the Industrial Court decision is so outrageous that no sensible person who has applied his mind to the question to be decided could have arrived at the same decision. This is called the principle of Wednesbury unreasonableness which is derived from the English case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 .

c. Procedural impropriety is when the Industrial Court, in reaching its decision, fails to observe the mandatory procedures and/or the principles of natural justice.

Reviewing / “Appealing” the Industrial Court Award

As mentioned above, the general rule is that the High Court is confined to review only the decision-making process and not the decision itself during a Judicial Review. The merits or correctness of the decision are forbidden territory and the courts are not empowered to substitute their decision in place of that which is sought to be challenged.

However, the Federal Court in R Rama Chandran has now provided an exception to this rule and allowed an applicant to challenge the merits of the decision of the Industrial Court, by way of Judicial Review.

Opening New Doors (The Decision R. Rama Chandran’s Case)

In R. Rama Chandran’s case, the appellant (the “Employee”) was dismissed by the respondent, the Malaysian Co-operative Consumer Society (the “Employer”) after two years of employment. The Employee contended that he was unlawfully dismissed by the Employer and claimed for reinstatement in the Industrial Court. Subsequently, the Industrial Court dismissed the Employee’s claim and held that the dismissal was with just cause or excuse.

The Employee applied to the High Court for Judicial Review on various grounds, but his application was dismissed. The Employee then appealed to the Federal Court against the decision of the High Court and posed the following questions of law:

Whether the Industrial Court Award should be quashed; and
Whether in the particular circumstances of this case, the Federal Court has the power not merely to quash the Industrial Court and remit the case to the Industrial Court but to go further and decide that the Employee had been dismissed without just cause or excuse and to award a fair compensation.

In a majority decision the Federal Court held, among others, that in a Judicial Review process, the Court has the power to review the decision of the Industrial Court on its merits, quash it by certiorari, substitute the decision of the Industrial Court with a different decision and also determine a just relief for the applicant.

To put it simply, in a Judicial Review proceeding, the High Court has the following powers in reviewing an Industrial Court case:

To review the decision of the Industrial Court on the merits;
To substitute a different decision in place of the Industrial Court Award without remitting the case to the Industrial Court for re-adjudication; and
To order consequential relief.

The exception to the Rama Chandran’s case

However, it must be noted that the exception is not applicable in every case. It ultimately depends on the factual matrix and a matter of judicial discretion on the part of the High Court as can be seen in the Federal Court case of Petroliam Nasional Bhd V Nik Ramli Nik Hassan [2004] 2 MLJ 288 .

The Petroliam Nasional Bhd case further states that although a reviewing judge might not have come to the same conclusion from the established facts, the judge should exercise restraint and should not disturb such finding unless it could be shown that the finding was based on grounds of illegality or plain irrationality.

Moreover, in another Federal Court case of Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 it was held that the principle of the findings of facts of the Industrial Court based on the credibility of witnesses ought not to be disturbed by the reviewing judge unless they were grounded on the illegality or plain irrationality.

Reliefs Available for Judicial Review Against Industrial Court Awards

Re-Adjudication in the Industrial Court

In Vadiveloo Munisamy v General Type Retreaders Sdn Bhd [1999] 7 CLJ 596, the High Court quashed the Industrial Court Award and decided that the dismissal was unjust. The High Court further was remitted the matter back to the Industrial Court to determine the appropriate remedy (reinstatement or payment of compensation) including the determination of its quantum.

In Swedish Motor Assemblies Sdn Bhd v Haji Mohd Ison bin Baba [1998] 2 MLJ 372 , the Court of Appeal found that the Industrial Court decision was tainted by Wednesbury unreasonableness. The Court of Appeal set aside the Industrial Court decision and substituted its own decision that the dismissal was unjust and remitted the case back to the Industrial Court to determine the appropriate remedy to be awarded.

Consequential relief (Rare Cases)

The R. Rama Chandran ’s case referred to the case of Navinchandra Shakerchand Shah v Ahmedabad Co-operative Department Stores Ltd [1979] 1 LLJ 60 in explaining the meaning of consequential relief. In a situation where the main relief to quash an order is insufficient to improve the claimant’s position, the court may provide an ancillary relief or a consequential order to complete the main relief.

Similarly, the Employee in R. Rama Chandran’s case was 51 years old and was unemployed for the last seven years. To remit back to the Industrial Court would certainly prolong the litigation and do great harm and injustice to the Employee instead. Thus, the Federal Court, by a majority chose not to remit the case to the Industrial Court for a retrial. Instead, it proceeded with the computation of the monetary compensation in lieu of reinstatement that was payable by the society to the Employee.

In Thilagavathy a/p Alagan Muthiah v Meng Sing Glass Sdn Bhd [1997] 3 MLJ 735, the High Court, in exercising the extended powers of judicial review, considered the decision of the Industrial Court on its merits, substituted its own decision, determined the just relief and calculated its quantum. Briefly, the High Court reviewed the merits of the case and ordered full back wages from the day of the employee's dismissal to the day of the Award.

With R. Ramachandran’s case, the Courts in Malaysia has certainly expanded jurisdiction and powers in relation to decisions of the Industrial Courts. A dissatisfied party now has an avenue to challenge the merits of an Industrial Court award by way of Judicial Review.

In light of recent events which will lead to unprecedented employment disputes and concerns, it is apt to highlight the implications of R. Ramachandran’s case.

The High Court must be allowed to look into not only the procedures but also the merits of an Industrial Court Award to ensure the rights of employees and employers are protected. Whilst there is not much positive news to come out of this pandemic, it is clear that an Industrial Court Award is not the final frontier.

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Judicial review of Industrial Court awards: its blemish and proposed reform

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Law Notes for Law students. study materials for BSL,LLB, LLM, and Various Diploma courses.

Award and Settlement | Labor Law | Industrial Dispute Act 1947

See... Methods of settlement of Industrial Disputes

See...... Distinction between Award and Settlement

See in Detail - On whom Award and Settlements are Binding | Industrial Dispute Act 1947 | Labour Law

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Judicial Review

Judicial Review refers to the power of the Judiciary to review and determine the validity of a Law or an Order. This is an important topic in the UPSC syllabus because it is often seen in the news. There are many examples of judicial review. This article shares more details on the concept of Judicial Review and examples related to it.

Judicial Review – Latest updates

Aspirants would find this article very helpful while preparing for the IAS Exam .

Judicial review is defined as the doctrine under which executive and legislative actions are reviewed by the judiciary. Even though we have in India the principle of separation of powers of the three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary is vested with the power of review over actions of the other two arms.

Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj Narain Case).
Judicial review is the power of the courts to consider the constitutionality of acts of organs of Government and declare it unconstitutional if it violates or is inconsistent with the basic principles of the Constitution.
This means that the power of the legislature to make laws is not absolute and that the validity and constitutionality of such laws are subject to review by the courts.
Judicial review is also called the interpretational and observer roles of the Indian judiciary .
The Indian Constitution adopted the Judicial Review on lines of the American Constitution.
Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.

Judicial Review and Constitution

According to Article 13(2), the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

Judicial review is called upon to ensure and protect Fundamental Rights which are guaranteed in Part III of the Constitution.
The power of the Supreme Court of India to enforce these Rights is derived from Article 32 of the Constitution. This provides citizens the right to directly approach the SC to seek remedies against the violation of Fundamental Rights.

Judicial Review Classification

We can classify judicial review into three categories. They are:

Reviews of Legislative Actions: This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.
Review of Administrative Actions: This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
Review of Judicial Decisions: This is seen in the Golaknath case, bank nationalisation case, Minerva Mills case, privy purse abolition case, etc.

Importance of Judicial Review

It is essential for maintaining the supremacy of the Constitution.
It prevents the tyranny of executives.
It maintains the federal balance.
It is essential for checking the possible misuse of power by the legislature and executive.
It is essential for securing the independence of the judiciary.
It protects the rights of the people.

Examples of Judicial Review

IT Act Section 66(A)

In 2015, the SC struck down Section 66(A) of the amended Information Technology Act, 2000. This provided the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction could fetch a maximum of three years in jail and a fine. This was repealed by the SC on the grounds that this section fell outside Article 19(2) of the Constitution, which relates to freedom of speech.

Golaknath Case (1967)

The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

This case is also sometimes cited as an example of Judicial Activism .

Limitations of Judicial Review

There are some limitations on the judiciary on exercising its power of judicial review. In fact, when the judiciary crosses its threshold and interferes in the executive’s mandate, it can be called judicial activism, which when furthered can lead to judicial overreach. Some of the limitations of judicial review are mentioned below.

Judicial Review limits the functioning of the government. It is only permissible to the extent of finding if the procedure in reaching the decision has been correctly followed but not the decision itself.
The judicial opinions of the judges once taken for any case become the standard for ruling other cases.
It is designated only to the higher courts like the Supreme Court and the High Courts.
Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.
The judiciary cannot interfere in political questions and policy matters unless absolutely necessary.
The judgments can be influenced by personal or selfish motives, hence, Judicial review can harm the public at large.
In India, a separation of functions is followed rather than the separation of powers.
The concept of separation of powers is not adhered to strictly in the judicial review. However, a system of checks and balances has been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature.

Judicial Review – Indian Polity:- Download PDF Here

UPSC Questions related to Judicial Review

What is the purpose of judicial review.

The purpose of judicial review is to make sure that laws passed by the legislature are not unconstitutional. It is also used to enforce constitutional discipline over administrative agencies.

Is Judicial Review mentioned in Indian Constitution?

The term ‘judicial review’ is not mentioned in the Constitution. However, it provides for the concept of judicial review.

What is the Difference between Judicial Review and Writ?

Writs are issued by the higher courts upon violation of Fundamental Rights, whereas judicial review is the power of the court to review and validate laws passed. Read more on Writs in the given link.

Can High Courts do Judicial Review?

The High Court can exercise judicial review in addition to administrative control over the lower courts within its limits.

The above details would help candidates prepare for UPSC 2023 .

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Judicial review of Industrial Court awards: its blemish and proposed reform

Ali Mohamed, Ashgar Ali (2010) Judicial review of Industrial Court awards: its blemish and proposed reform. Industrial Law Reports, 1. i-xxiii. ISSN 0127-3051

This article highlights the drawbacks of contesting awards of the Industrial Court in the civil courts by way of judicial review. It is contended that the existing mechanism for challenging awards of the Industrial Court by way of judicial review defeats the objectives of the Industrial Relations Act 1967 (IRA) to ensure the speedy disposal of industrial disputes. Apart from the inordinate or unwarranted delay in the civil courts, the costs of litigation are immense with the workers having to bear the financial burden and end up suffering themselves. Further, the article will also elucidate the fusion of the common law master and servant principles by the civil courts into the industrial jurisprudence. The civil courts are accustomed with the common law master and servant principle, which is based on legal justice. This is unlike the Industrial Court where s. 30(5) of the IRA provides that the court must act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities and legal form. The above simply means that the Industrial Court is not strictly confined to the administration of justice in accordance with the law, but is more concerned with the dispensation of social justice. 'The provision of social justice is of paramount concern in the corridors of the Industrial Court and the upholding of the spirit of section 30(5) of the IRA 1967 without fear or favour is very much an important goal of this Court

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Appeals against Industrial Court Awards to the High Court & Court of Appeal

February 7, 2023.

A Write-Up and Commentary (1) Automatic reference of unresolved dismissal cases to the Industrial Court (2) Section 33C IRA 1967: Appeals against Industrial Court Awards to the High Court & Court of Appeal

With effect from 1 st Jan 2021, amendments have been made in respect of several provisions of the IRA 1967. In summary, the above amendments were as follows:

“Automatic reference of dismissal cases” under Sec. 20 (3) of the IRA 1967 where the DG of IR is satisfied there is no likelihood of representations being settled;
Representation by a consultant (any other person) at conciliation proceedings at the Industrial relations department in respect of dismissal cases – Sec. 20 (6) (b) (iv) IRA;
The next-of-kin of a claimant suffering from mental disability may apply to the High Court to appoint a guardian ad-litem for conciliation and court proceedings – Sec. 20 (6A) IRA;
Court may continue hearing a case of the deceased workman and award back-wages or compensation in lieu of reinstatement or both to his next-of-kin – Sec. 30 (6B) IRA;
Industrial Court’s power to determine the actual date of dismissal in disputed cases
Industrial Court Award to carry an interest of 8% or lesser as directed by the Court from the thirty-first day from the date of Award – Sec. 30 (1A) IRA;
The factors set out in the Second Schedule of the IRA 1967 shall not apply to dismissal cases arising from trade union activities under Secs. 4, 5 or 7 of the IRA 1967. Thus, the limitation of 24 months in back-wages shall have no application in such cases.
Sec. 30 (7) IRA has been removed giving the Industrial Court the discretion to decide on the effective date of awards including effective date of a collective agreement, where it is no longer limited to six (6) months prior to the date of minister’s reference.
The abolishment of Sec. 33A IRA and insertion of Sec. 33C IRA giving the right to appeal which is akin to an appeal from the Sessions Court to the High Court.
Minister’s power to restrain a strike or lock-out if it lasts beyond a certain time or extends beyond a certain scope, endangering life, personal safety or health of the whole or part of the population – Sec. 44C IRA.
A workman employed by a statutory authority may file a representation under Sec. 20 (1) IRA provided there was consultation by the Minister with the statutory authority concerned and published in the Gazette naming the statutory authority.
The penalty for non-compliance of an Award under Sec. 56 (2) IRA has been increased from RM2,000.00 to RM50,000.00 or imprisonment for up to one year, or both, and the Court may make order the person to make payment due to a workman by virtue of an order made under Sec. 30 IRA.

In this write-up, I will be sharing my views and comments for practitioners to take note with regard to practical implementation of related areas of the law on “automatic reference of unresolved dismissal cases” and Sec. 33C IRA 1967 on appeals against Industrial Court awards, including via judicial review.

Is it mandatory for claimant to plead for reinstatement at the Industrial Court?

Under Sec. 20 (1) IRA 1967, when a workman considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the DG of IR located nearest to his place of employment to be reinstated in his former employment. The DG of IR shall not entertain any such representations unless they are filed within sixty days of the dismissal.

Previously, in Holiday Inn, Kuching v Elizabeth Lee Chai Siok [1992]1 MLJ 320 , the employee filed representation for reinstatement under Sec. 20 IRA 1967. During the hearing before the Industrial Court, the claimant changed her stand and sought for damages (compensation) in-lieu-of reinstatement. The High Court then ruled that the claimant could not come within the provisions of Sec. 20 (1) and (3) of the IRA 1967. The legislature had intended that recourse to the Industrial Court is only in respect of reinstatement and that the Industrial Court is no longer seized with jurisdiction once reinstatement is no longer being applied for. It went on to say that as reinstatement has been abandoned during the court hearing, there was no longer a basis to award compensation in lieu of reinstatement.

In the case of The Borneo Post Sdn Bhd v Margaret Wong [2001] 8 CLJ 758 , the High Court took an opposite position. Even though the claimant had failed to plead reinstatement at the Industrial Court, it still had the jurisdiction to hear and determine the case. Upon an application for judicial review, the High Court held that the failure of the claimant to plead reinstatement is not fatal. The High Court, inter alia, held that:

“….. In my view, it is misleading, as the Industrial Court stated in its ruling, to say the respondent does not want reinstatement. I think it would be more accurate to say that she wanted reinstatement but that it would be inexpedient in her circumstances for the Industrial Court to order it which accounts for her omission to ask for it.

As I said earlier, whether or not reinstatement must be expressly prayed for in the statement of case is a point of procedure. The omission in the statement of case to state it as a specific relief does not affect the jurisdiction of the Industrial Court to hear and determine the case on the merits : see s 29 (d) of the Industrial Relations Act. The Industrial Court derives it jurisdiction from the order of reference by the Minister made under s. 20 (3) of the Industrial Relations Act and which such court must exercise, so it was held in Assunta Hospital v Dr. A Dutt [1981] 1 MLJ 115 .”

In Hana International Sdn Bhd v Tan Thien Cheng [2002] 1 ILR 551 , the Industrial Court applied the relevant authorities including “The Borneo Post” case, and arrived at the following:

“…. Therefore, in the present case, even though reinstatement had not been pleaded by the claimant in his Statement of Case and no evidence was adduced by him in court that he is applying for reinstatement, the court is satisfied that it had jurisdiction to hear the case.

Under Sec. 20 (1) of the IRA 1967, it is clear that the claimant is permitted to make representations in writing to the Director General of Industrial Relations to be reinstated in his former employment. It is therefore incumbent upon the Director General at that stage to ensure that the claimant had stated in his written representations that he is asking for reinstatement. Otherwise, the Director General would not be legally bound to entertain such representations and take effective steps to settle the representations. If settlement cannot be arrived, then the Director General notifies the Minister accordingly under s 20 (2) of the IRA 1967. If the Minister thinks fit, he may, under s. 20 (3) of the IRA 1967, refer the representations to the court for an award.

Finally, when the representations are made to the court, the court will, due to the legal procedure provided by s. 20 of the IRA 1967, exercise jurisdiction over the matter on the assumption and basis that, in the first place, the claimant would have made representations in writing under s. 20 (1) of the IRA 1967 for reinstatement in his former employment …..Clearly, it is implicit that any reference made by the Minister under s. 20 (3) of the IRA 1967 is in respect of representations for reinstatement, which had been duly and properly made by the claimant under s. 20 (1) of the same Act. In view of the above consideration, at this stage, the court is satisfied that it has jurisdiction to hear the claimant’s case even though he had not pleaded reinstatement in his Statement of Case.”

In the recent case of Sanbos (Malaysia) Sdn Bhd v Gan Soon Huat [2021] MLJU 498 , the COA held that it was no longer a mandatory requirement for a claimant to plead reinstatement as a remedy and that a failure to plead reinstatement as such was not fatal to an unfair dismissal claim . The Industrial Court had dismissed the claim for constructive dismissal on grounds that:

The applicant did not plead reinstatement as a relief in his Statement of Case resulting in the Industrial Court ceasing to have jurisdiction to make an Award; and
The Applicant had failed to prove that he was constructively dismissed.

During judicial review, the High Court held that the Industrial Court had erred in law, which was echoed by the COA which was of the view that there was no requirement to plead reinstatement as a remedy/relief as that is only material at the time of representations made to the DG of IR pursuant to Sec. 20 (1) IRA 1967 .

Employers should be cognizant that a failure to seek reinstatement at the Industrial Relations department would be fatal to a claimant’s case as it contravenes the statutory requirements of Sec. 20 (1) IRA 1967. On the other hand, where a reinstatement is offered to a claimant at the IR Department and the claimant refuses to accept such reinstatement, the claimant’s case under Sec. 20 (1) IRA would come to an end. The matter is considered resolved and shall no longer be referred to the Industrial Court for adjudication.

Employers should take note that where reinstatement is offered, a claimant can always return to work, and submits his resignation anytime soon thereafter, and still be eligible to receive his salary from the date of dismissal to the date of his reinstatement. In cases where the claimant has secured another employment, especially a higher paying job, he will still need to serve his notice (be it 2 months or 3 months) or pay indemnity in-lieu of notice to his employer. He will only be saved from having to make such indemnity payments or serve such notice period if his new employer is willing to pay his previous employer the indemnity payment in lieu of his notice period.

Automatic Reference of unresolved Dismissal Cases to the Industrial Court

Since 1 st January 2021, dismissal cases that are unsuccessfully conciliated at the IR Department shall automatically be referred by the DG of IR to the Industrial Court for adjudication.

In respect of dismissal cases that are unsuccessfully conciliated at the IR Department, Sec. 20 (3) of the IRA provides that:

“Where the Director General is satisfied that there is no likelihood of the representations being settled under subsection (2), the director General shall refer the representations to the Court for an award”.

Employers should take note that in respect of dismissal cases, the power to refer such dismissal cases to the Industrial Court no longer lie with the Minister of HR as was the case prior to 1 st Jan 2021. The power for such reference is now vested in the DG of IR by virtue of Sec. 20 (3) of the IRA , as shown above. However, there is no prescribed time limit stated in the IRA 1967 for the DG of IR to determine if he “is satisfied that there is no likelihood of settlement”. It will be up to the DG of IR to take reasonable measures and time frame, fairly and impartially to successfully conciliate such dismissal cases to prevent an inundation of dismissal cases to the Industrial Court due to the “automatic reference” of all unresolved dismissal cases effective 1 st Jan 2021.

Sec. 33C of the IRA 1967 – Is Judicial Review still applicable to appeal against an Industrial Court Award to the High Court?

It is noteworthy that the new provision in Sec. 33C above provides a direct appeal against an Award of the industrial Court to the High Court. Section 33C of the IRA provides that:

If any person is dissatisfied with an award of the Court made under section 30 such person may appeal to the High Court within fourteen days from the date of receipt of the award.
The procedure in an appeal to the High Court shall be the procedure in the Rules of Court 2012 for an appeal from a Sessions Court with such modifications and circumstances as may require.
In dealing with such appeals, the High Court shall have like powers as if the appeal is from the Sessions Court.

With the above, challenges to Industrial Court Awards handed down after 1 st January 2021 is by way of appeal to the High Court as per Sec. 33C IRA. While an appeal is in process, employers must take note that reinstatement of a workman shall not be subject to any stay of proceedings in any court: Sec. 33B (2) IRA 1967 .

Where an appeal provision is available, it was held in the Supreme Court case of Government of Malaysia v Jagdis Singh [1987] 2 MLJ 185 that certiorari should not be issued unless there is a clear lack of jurisdiction or blatant failure to perform some statutory duty or serious breach of principles of natural justice . In short, judicial review to set aside Industrial Court awards are still available but under very limited circumstances.

Where lies the difference between Judicial Review and an appeal under Sec. 33C IRA?

(a) Principles of Intervention

In a judicial review, the High Court plays a supervisory role to review the substance of the Industrial Court’s decision. Thus, it has limited jurisdiction as it cannot review the evidence and substitute the findings of the industrial Court with its own. Where the High Court is exercising its appellate jurisdiction, it may reassess and analyse the evidence and is therefore, more inclined to interfere with the Industrial Court’s findings of fact based on other available or proved facts, or where the credibility or reliability of any witness are impugned.

A judicial review application may result in the quashing of the Industrial Court award only where the Industrial Court has committed an error of law on any of the grounds resulting in illegality, irrationality, proportionality and procedural impropriety . In an appeal, there are wider scope and grounds to challenge an Industrial Court award and not limited to errors of law only, as in the case of judicial review. In an appeal, the High Court may overturn an award of the Industrial Court due to errors of law and facts arising from lack of judicial appreciation of relevant evidence by the Industrial Court .

(b) Admissibility of Fresh Evidence in an Appeal

While it is not allowed in judicial reviews, in an appeal before the High Court, fresh evidence may be admitted if the High Court Judge is satisfied that:

The evidence was not available to the party concerned during the hearing at the Industrial Court even where reasonable diligence is exercised; and
The fresh evidence, if true, would have a determining influence on the decision of the Industrial Court.

Prior to 1 st Jan 2021, the dissatisfied party is required to obtain leave of the Court before making the application for judicial review. Presently, Order 55 r.3 Rules of Court 2016 provides that the notice of appeal shall be filed at the Court where the decision is being appealed. Herein, the dissatisfied party would only be required to file a notice of appeal within 14 days from the date of receipt of the Industrial Court award. The other party may file a notice of cross appeal within 14 days from the receipt of date of service of the record of appeal.

In the case of an appeal from the High Court to the Court of Appeal, where the value of the claim is less than RM250,000.00, the applicant shall have the burden to demonstrate that there was:

a prima facie case of error, or
the question is one of general principle decided for the first time; or
the question is of importance upon which further argument and decision of the court would be to the public advantage: United Oriental Assurance Sdn Bhd v Penang Medical Centre Sdn Bhd [1999] 2 MLJ 542 .

(d) For Industrial Court Matters, the Highest Appellate Court is the Court of Appeal

Prior to 1 st January 2021, a challenge against the High Court in a judicial review application may, with the leave of the court, be escalated till the Federal Court. Currently, as Sec. 33C provides that the award of the Industrial Court shall be regarded as a decision from the Sessions Court for purpose of an appeal, the Court of Appeal is now the highest court for any challenge against an Industrial Court award.

In Noraini bte Omar v Rohani bin Said [2006] 3 MLJ 150 , the COA held that it is at liberty to depart from the decision of the Federal Court if the decision is wrong, because it stands at the apex with regards to claims that are solely within the jurisdiction of the subordinate courts. As such, it will not be surprising to see the COA being the final appellate court on matters originating from the Industrial Court to refuse to be bound by a preceding decision of the Federal Court in some future cases .

(e) Shorter Time for filing an Appeal

Previously, the dissatisfied party was given up to 3 months from the date of receipt, to challenge the Industrial Court award by way of judicial review. Under Sec. 33C of the IRA, an appeal must now be made within 14 days of receipt of the Industrial Court award, giving the dissatisfied party a shorter time to make up his mind.

Employers should consult their legal department and external specialist lawyers whether to file an appeal under Sec. 33C of the IRA 1967 against an Industrial Court award handed down in favour of a claimant, if they have strong grounds to do so. They must also be aware that any challenge by way of judicial review against an Industrial Court award can now be made only under very limited circumstances, as explained above. Of importance to note is that the number of appeals from the Industrial Court has now been reduced from three to two, with the COA being the highest appellate Court.

While the Industrial Court decides cases based on equity and good conscience, it remains to be seen whether the appellate Courts would be inclined to apply judicial principles in a similar vein (based on equity and good conscience) or differently, when exercising its appellate jurisdiction and role.

Dato’ Dr. Lim Weng Khuan

DBA (UniSA), MBA (Hull), CLP (LPQB), LL. B (London)

CHATGPT In HR

The Foreign Worker and the Labour Laws

The employer should have more rights than the employee

+60 12-508 0881
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Roles of Adjudicating Authorities in Settlement of Industrial Disputes

Main objectives of the industrial disputes act, 1947.

The promotion of measure for securing amity and good relationship between the employer and workmen
Collective bargaining.
Prevention of illegal strikes and lockouts.
Relief to workmen in the matter of lay-off, retrenchment and closure of undertaking
An investigation and settlement of the industrial dispute between employers and employers, employers and workmen or workmen and workmen with the right of a presentation by a registered trade union.
The object of the Industrial Disputes Act, as its preamble indicates, is to make provision for the investigation and settlement of industrial disputes which means adjudication of such disputes also
The Act envisages collective bargaining, contracts between union representing the workmen and the management, a matter which is outside the realm of the common law or the Indian law of contract.
The Act also provided for the constitution of various committees and conferred extensive powers on different kinds of authorities in the matter of settlement of adjudication of industrial disputes.
It also provides remedies under Sections 10, 12, 18, 19 and 31(2), 33(1)(a), 33C (1) and 33C (2).

Industrial Dispute- Meaning and Concept

Labour courts, qualification for the appointment of a presiding officer of the court:.

He is or has been the Judge of a High Court
He has for a period of not less than 3 years been a district Judge or an Additional Judge.
He has held any Judicial office in India for not less than 7 years.
He has been the Presiding officer of Labour Court constituted under any provision Act for not less than 5 years.
he is not an independent person; or
he has attained the age of sixty-five years.
The propriety or legality of any order passed by an employer under the Standing Orders
The application and interpretation of Standing Order.
Discharge or dismissal of workmen, including reinstatement of, or grant of, or relief to, workmen wrongfully dismissed.
Withdrawal of any customary concession or privilege.
Illegality or otherwise of a strike or lockouts; and
All matters other than those specified in the Third Schedule.

Functions of Labour Court

All matters other than those specified in the Third Schedule.
Voluntarily reference of dispute by written agreement between the parties under Section 10A
Arbitrations reference under Section 10A.
Permission to or approval of the action of discharge under Section 33.
Complaint by the aggrieved employees under Section 33A
Application under Section 33(c)2 for the computation of any money or any benefit which is capable of being computed in the terms of money.
Reference of awards or settlement for the interpretation in case of difficulty or doubt under Section 36A.

Duties of Labour Courts

Industrial tribunals, qualification for the appointment of a presiding officer of the tribunal:.

He is, or has been a Judge of a High Court or
He has, for a period of not less than three years, been a District Judge or Additional District Judge;
He is or has been Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at least seven years' experience including labour department including three years of experience as Conciliation Officer: Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be before being appointed as the presiding officer or;
He is an officer of Indian Legal Service in Grade III with three years' experience in grade.

Jurisdiction of Industrial Tribunal

Functions of industrial tribunal, the following matters are specified in the second schedule[9]:.

Withdrawal of any customary concession or privilege

The following matters are specified in the Third Schedule[10]:

Wages, including the period and mode of payment
Compensatory and other allowances.
Hours of work and rest intervals.
Leave with wages and holidays.
Bonus, profit sharing, provident fund and gratuity
Shift working otherwise than in accordance with standing orders;
Classification by grades.
Rules of discipline;
Rationalisation;
Retrenchment of workmen and closure of establishment; and
Any other matter that may be prescribed.

Duties of Industrial Tribunal

National industrial tribunal, qualification for the appointment of a presiding officer of the national tribunal.

A person shall not be qualified for appointment as a presiding officer of a National Tribunal, unless he is, or has been a Judge of a High Court.
The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it.

Jurisdiction of National Tribunal

Malhotra. O.P., The Law of Industrial Disputes, (1988), 5th ed. Vol. 1, p. 16
AIR 1958 353, 1958 SCR 1156
Civil Appeal No. 5176 of 2005 LLR 1044
Industrial Disputes Act, 1947, Section 2(k), No. 14, Acts of Parliament 1947 (India)
(1984) Lab.I.C. 276 (286-87) (S.C)
Industrial Dispute Act, 1947, Section 7, No. 14, Acts of Parliament 1947 (India)
Industrial Dispute Act, 1947, Second Schedule, No. 14, Acts of Parliament 1947 (India)
II ADC (2005) 12
Industrial Dispute Act, 1947, Third Schedule, No. 14 Acts of Parliament 1947 (India
AIR 1956 231, 1955 SCR (2)1315
Industrial Disputes Act, 1947, Section 10, No. 14, Acts of Parliament 1947 (India)
Industrial Disputes Act, 1947, Section 7-B, No. 14, Acts of Parliament 1947 (India
Industrial Dispute Act,1947, Section 10 (1-A), No. 14, Acts of Parliament 1947 (India)
Industrial Dispute Act,1947, Section 10 (2), No. 14, Acts of Parliament 1947 (India)

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Foundations Of Judicial Review Essay Notes And Plans Notes

Updated foundations of judicial review essay notes and plans notes.

Administrative Law

Administrative Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by th...

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Joseph argues that: ‘The debate over [the constitutional foundations of] judicial review portends a crisis of legitimacy over the Courts' powers to invalidate decisions of democratically empowered decision-makers. But it is a crisis that is difficult to fathom. Principles of judicial review are, as they have always been, sourced in the common law.’ Is this true?

Introduction (Whole section here is question-specific)

Joseph’s statement is underlined by a number of assertions which need to be addressed carefully in order to express disagreement with him:

Assertion #1 : The principles of judicial review (JR) are based on the common law; and

Assertion #2 : The legitimacy of the courts in invalidating decisions of democratically empowered decision-makers is unaffected by those principles being based on the common law.

It will be argued, contrary to these assertions that:

In dealing with assertion #1 , the principles of judicial review are not so easily ascribable to the common law both in doctrine and in fact; and

In dealing with assertion #2 , even if the principles of JR can be said to be based in the common law, the legitimacy of the court, although sustainable when invalidating SOME types of decisions and/or decision-makers, it cannot account for the entire field of JR as Parliamentary sovereignty is undermined by statutory powers are concerned.

Common Law Theory, its Strengths, and its Problems

OUTLINE: Common Law Theory

Briefly, Craig [(1999) PL] , as one of the prominent common law theorists, argues that the basis on which the courts can invalidate decisions is based in what Galligan [(1982) OJLS] calls the “common law standards of good administration” .

On their view, where courts invalidate decisions of public bodies by applying these “standards of good administration”, they are enforcing their own judicial will and standards, not those of Parliament.

STRENGTH #1: Factual Honesty

Galligan’s “standards of good administration” would include principles such as:

The requirement of fairness (as seen in Cooper v Wandsworth , Osborn v Parole Board , amongst many other cases);

The rule against bias (as seen in Porter v Magill , Pinochet (No 2) , amongst many other cases);

The protection of legitimate expectations (as seen in MFK Understanding , ex parte Unilever , ex parte Coughlan , amongst many other cases);

Prohibitions against fettering of discretion (in the numerous forms seen in British Oxygen v Minister , ex parte Kynoch , amongst many other cases); and

Reasonableness ( Wednesbury v Associated Picture ).

These principles, as Laws [(1995) PL] points out, and opposing author Forsyth [(2000) Judicial Review and the Constitution] concedes, are creations of the common law and judicial innovation.

This lends common law theory factual honesty (which Laws (1995) and Craig [(1998) CLJ] argue the modified ultra vires theory lacks – discussed below ) and internal coherence as it is clear that Parliament does not (or if it does, rarely ever) explicitly legislates that the above-mentioned principles are to be applicable in the field of administrative law. In fact, in Wilkinson v Barking , the court even noted that unless it is clear that Parliament intended to displace the principles of procedural fairness, the courts would be reluctant to disapply them.

As such, there is some truth to Joseph’s assertion that the principles of JR are “sourced in the common law”, in the sense that they originate therefrom. However, to sustain the assertion that the common law forms the constitutional foundation of JR, we need to look deeper.

STRENGTH #2: Accounting for Non-Statutory Powers and Bodies

Beyond factual honesty, the common law also seems to be a legitimate foundation for the courts’ application of its standards of good administration insofar as non-statutory powers and bodies are concerned.

In Lewis v AG of Jamaica , the Privy Council enforced the principles of natural justice against the Mercy Committee in the exercise of their prerogative powers of mercy.

Forsyth [(1996) CLJ] himself noted that the ultra vires doctrine (discussed below) was “never [meant to be] the sole justification for judicial review” , and that the common law can legitimately form the basis of JR of non-statutory powers and bodies.

As seen in ex parte Bentley , the Home Secretary in the UK (typically considered a “democratically empowered decision-maker”—although this will be explored more thoroughly later) exercises the mercy prerogative.

The fact that his decisions, given their prerogative nature, can be subject to JR purely on the basis of the common law (even on Forsyth’s account) without calling into question the courts’ legitimacy to do so, gives some credit to Joseph’s support of the common law as the foundation of JR.

However, this is only observable with regards to non-statutory powers of democratically empowered decision-makers, or the powers of non-democratically empowered decision-makers (such as that seen in ex parte Datafin ).

Where statute comes into play, the common law theory runs into contravening the doctrine of Parliamentary Sovereignty (PS).

WEAKNESS: Misalignment with Parliamentary Sovereignty

Forsyth [(2000) Judicial Review and the Constitution] put forth a convincing case (expanding on the case he built in [(1996) CLJ] ) that common law theorists (or “weak critics” as he called them), even if they do not intend to do so, necessarily undermine PS. Allan [(2002) CLJ] , despite being in an entirely different camp, also makes the same point.

Forsyth (2000) puts forward the following two propositions:

Common law theorists propose that the common law will require decision-makers to apply the standards of good administration unless Parliament clearly intends otherwise.

Ultra vires theorists propose that unless Parliament clearly intends otherwise, it is presumed that Parliament intended for the decision-makers to abide by the common law standards of good administration.

Although similar,...

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Foundations Of Judicial Review Essay Notes And Plans

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Judicial Review: History of Origin, Process, Consequences Essay

Declaration of independence, the intentions of judicial review, the consequences of judicial review, works cited.

The judicial review found its origins within the Declaration of Independence, which declared the colonies of North America, to be “free and independent states.” (“Declaration of Independence:” par. 31). This declaration has been at the foundation of the philosophical, political, and ideological battle between those advocating a very broad construction of the limits, and strict construction of powers within the Constitution and vice versa.

Before the ratification of the Constitution, the Articles of Confederation document provided the legal basis of the thirteen founding colonies to declare themselves individual sovereign states but to agree to a perpetual confederation. The word confederation is important as it denotes an alliance, nor the formation of a single entity. Within the Articles of Confederation, each State retained full sovereignty over all matters not “expressly delegated” to the United States (“Transcript of Articles of Confederation 1777” par.3)

At the Philadelphia convention, the Virginia delegates were opposed to the new Constitution, fearing that it promoted federalism. Governor Edmund Randolph, a pro-ratification delegate, was forced into making concessions to Patric Henry. These concessions consisted of the phrase “expressly delegated” (“Transcript of Articles of Confederation 1777″ par.3), that appeared in the Articles of Confederation, to be written into the Constitution to limit the powers of the new Congress. Further, they wrote into their ratification statement that they ”retained the right to withdraw from the new government, if the new government exceeded its delegated powers” (“Ordinance of Secession 1861” par. 1). As such, this understanding formed part of the State of Virginia’s ratification in 1788. As all the individual states were equals, Virginia’s conditions would apply to each state.

The ratification of the Constitution created the US Supreme Court. Article III created the Judicial Branch. Section 1 created the Judicial Powers. Section 2 assigned “original jurisdiction” over the individual States. (“The United States Constitution” Article III). Judicial Review is the lens through which all new laws created by Congress and Senate, are examined for their Constitutionality by the sitting Justices of the Supreme Court. If a new law created by the legislative branch is deemed to be unconstitutional, that law will be struck down. The Executive branch, has with the expanding powers of the Presidency, taken to creating Bills to put before the legislative branch for their approval, and creation of a new law therefrom. The current high profile example of this is Obama’s “Healthcare Bill” which was eventually passed by the legislative branch and is now being examined for its constitutionality by the Supreme Court.

Judicial Review makes the Supreme Court the de facto lawmaker in the United States today through their monopoly control of the interpretation of the US Constitution. Thus, effectively, the system of checks and balances envisaged by the writers of the Constitution is abrogated. The Supreme Court, through Judicial Review, has widened its powers of interpretation through the phrase “substantive due process” (“The United States Constitution” Amendment 14). This allows the Supreme Court to define through Judicial Review, what rights the Constitution confers or protects.

This has created huge controversies that relate to the interpretations assigned to the Constitution. The decisions of the Justices, while sitting on the Supreme Court bench, which is for life, barring impeachment, can carry immense political repercussions. There are several styles of interpretation that are employed by the Justices: “textualists, intentionalists, pragmatists, and natural law theorists” (“Theories of Constitutional Interpretation” Introduction). Gutzman states that the Jeffersonian interpretation, which is strict constructionism, argues for sovereign states.

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But… they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders (the nationalist and monarchist wings) wanted to change that understanding.” (73).

Through their interpretations via the Judicial Review process, the Justices can, and have, effectively re-written the Constitution. Gutzman writes that, “Justice Marshall, in McCulloch v Maryland, wrote, that the Articles of Confederation had specified that Congress had only the powers it was expressly delegated, that the Constitution included no such language, so no such principle applied to it.” (91).

This interpretation of the Constitution, by Justice Marshall, reduced the power assigned to individuals and the States, and arrogated it to the Supreme Court, thus greatly increasing the power and influence wielded by the Court. This approach is now usually referred to as a living constitution, which requires ongoing interpretation to evolve with society and the ethics of the times.

I would argue that this interpretation is open to serious challenges and arguments. Under Amendment 9 – Construction of Constitution. Ratified 12/15/1791 “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (“The United States Constitution” Amendment 9). The further argument can be made with Amendment 10 – Powers of the States and People. Ratified 12/15/1791. Amendment 10 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (“The United States Constitution” Amendment 10).

Taken together, the Amendments provide for the limitation of central government power in favor of retaining the rights of the States and further, the individual. This would constitute a textualist interpretation.

Judicial Review has an ulterior purpose. The oft-quoted purpose, to provide a system of checks and balances to government power, are simply the assertions of apologists and technocrats. The purpose of the Judicial Review is to legitimize and validate the expansion of central government power. De Jouvenel states, “in the history of political thought, a concept originally designed to limit and check state power, was turned by the state into an instrument that gave it legitimacy” (27).

So it is with Judicial Review. The history of the United States demonstrates the veracity of De Jouvenel’s observation. The constant encroachment of the central government over the rights of the States and individuals has been extraordinary.

The United States was birthed in revolution and the breaking of English law. That the revolution was successful, allowed the individuals to create a new law. That law, the Constitution, was designed to accomplish two tasks. The first was to create a Republic, where the Rule of Law is observed. The second was to create a federal system of government. These two objectives can be accomplished, but they carry certain contradictions within themselves. It is largely these contradictions that Judicial Review is supposed to resolve. I would argue that federalism is trumping republicanism, largely due to Judicial Review.

De Jouvenel, Bertrand. On Power. London and New York: Hutchinson 1948. Print.

Gutzman, Kevin. The Politically Incorrect Guide to the Constitution. Massachusetts, Washington D.C.: Regnery Publishing 2007. Print.

Ordinance of Secession 1861. Web.

The Declaration of Independence 1776. Web.

Theories of Constitutional Interpretation n.d. Web.

The United States Constitution n.d. Web.

Transcript of Articles of Confederation 1777. Web.

Chicago (A-D)
Chicago (N-B)

IvyPanda. (2022, January 23). Judicial Review: History of Origin, Process, Consequences. https://ivypanda.com/essays/judicial-review-history-of-origin-process-consequences/

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UPSC Questions related to Judicial Review

Is Judicial Review mentioned in Indian Constitution?

What is the Difference between Judicial Review and Writ?

Can High Courts do Judicial Review?

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Judicial review of Industrial Court awards: its blemish and proposed reform

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Appeals against Industrial Court Awards to the High Court & Court of Appeal

Dato’ Dr. Lim Weng Khuan

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