admin law- ouster clause

It is settled practice that at common law, the courts were required to follow clear legislative intent.  However, it has been the practice of many judges to say that parliament never intended to deprive the court of total jurisdiction if the public body’s wrongdoing was discernible.  Thus, the courts have found various reasons and methods to circumvent clauses that seek to cut down their power of review.  This was shown in the case of Anisminic, where it was held that the decision of an administrative tribunal could be set aside on jurisdictional grounds if it asked itself the wrong question, or made an error of law which took it outside its jurisdiction.  In such a situation, the ouster clause would not protect the decision from challenge.  Other instances where ouster clauses would not be honoured are where:

1. there is an improper composition of a tribunal
2. absence of locus standi
3. contravention of natural justice
4. improper purposes and irrelevant considerations
5. fraud
6. and others

The case of Anisminic has shown that even in the face of the clear and unambiguous wording of an ouster clause, the courts will not be prevented from inquiring into the decisions of public bodies, as in this case the statute stated that, “the determination of the tribunal… shall not be called in question in any court of law.”  Nevertheless, it can be seen that judges like Lord Denning who recognizes the intention of the framers of ouster clauses to cut down the court’s powers, when he stated that ‘they were not to be outdone’ have consistently waged a  war for the expansion of the court’s jurisdiction.  

Interestingly, constitutional ouster clauses have somewhat been able to withstand the assault by judges and cases seem to suggest that they are more likely to be honoured, especially ouster clauses protecting the decisions of the Head of State.  

Constitutional ouster clauses provide that certain decisions ascribed to the Head of State and the Service Commissions are not justiciable.  A representative example (as it relates to the rest of the commonwealth Caribbean) can be found in section 80(2) of the constitution of Trinidad and Tobago which protects the President from an inquiry as to whether or not he has acted in accordance with the advice of, or after consultation with any person or authority.

It has been argued by Dr. Basu that constitutional clauses must be given a face value approach (interpreted literally) since they represent the clear policy intent of the founding fathers that certain questions should not be reviewed by the courts.  This viewpoint receive affirmation by Hytalia CJ in Harikisoon v AG of Trinidad and Tobago, where he said that he was ‘firmly of the opinion that a court would be acting improperly if a perfectly clear ouster provision in the constitution of a country which is its supreme law is treated with little sympathy or scant respect, or is ignored without strong and compelling reasons. This has also been the approach taken in the case of Re Alva Bain, where the issue to be determined  was whether the court could inquire into whether the President had consulted with the PM before making a decision as required. The judge applying a face value approach found that there was clear wording as was required by Lord Denning in ex parte Gilmore and the clause should therefore be upheld. The court also said that the President’s performance of an administrative or executive act was non-justiciable. Also, in Re Blake where the court was asked by Blake to review the GG’s decision to uphold the PM’s appointment, on the ground that the GG’s actions infringed his basic rights and freedoms. The court said it had no jurisdiction to review the GG’s decision since that would require that he divulge confidential information and would expose representatives and others to undesirable consequences. That was against public policy. The court also held that the subject of the decision was not amenable to judicial review as it was subject to a clear ouster clause.

But even in light of the view that the constitution is the supreme law of the land and its intention should be honoured.  There is still the possibility that constitutional ousters could be reviewed in the face of ‘strong and compelling reasons,’ as submitted by Professor Fiadjoe that ‘any evidence of an offence against the constitution is enough to satisfy the test of ‘strong and compelling reasons’.  This argument would be consistent with the Privy Council’s view in Thomas v. AG that there is intrinsically no difference between a constitutional ouster clause and a statutory ouster clause, in that where there is a breach of an individual’s fundamental rights, the constitutional ouster clauses could not protect the commission.  Moreover, in the trilogy of Guyanese cases, ( Re Sarran, Re Langhorne and Evelyn Chichester)  the Guyanese courts took the position that the ouster provisions in the constitution could be reviewed on the ground of jurisdictional error.  The conclusion in Re Sarran was reached upon a reliance on Art 125(8) of the then Guyanese constitution, which was considered to be a proviso to the ouster clause which preserved the ancient supervisory jurisdiction of the high court. Thus, the submission by Professor Fiadjoe that “the correct judicial approach to constitutional ouster clauses, and one least likely to run into jurisprudential quagmire, ought to be that which posits that whenever an “offence” is committed against a constitutional prescription, then the jurisdiction of the courts ought to be invoked for the protection of rights, ouster clauses notwithstanding” can be supported.  

Case law and Professor Fiadjoe seem to suggest that the courts have courts have always reserved to themselves a right to review in exercise of their duty to uphold the rule of law and are more willing to hold in cases concerning the Public Service Commission that constitutional ouster clauses could not protect their decisions in the face of constitutional infringement and jurisdictional errors.  The other side to the argument is to acknowledge that the courts of law have never relished the idea of substituting their views for those of the public authorities who have the legal and constitutional authority to exercise those powers.  And, where the matter for resolution is inextricably oven into the fabric of contentious politics, the courts are even more reluctant to intervene, and understandably, adopt a posture of judicial restraint.  

It is in light of these developments that it is fair to state that the courts have succeeded in preventing draftsmen from ousting their supervisory jurisdiction in certain instances, and has paradoxically determined what its powers of review will be.