Judicial review

• Judicial review is a mechanism by which the High Court, that is, the Supreme Court in Mauritius, exercises a supervisory jurisdiction over lower courts, tribunals and other public bodies and ministries
• The focus of judicial review is concerned with reviewing not the merit of the decision in respect of which the application for judicial review is made, but the decision-making process itself
• The regulations controlling judicial review in the UK are referred to as "UK Order 53"
• Judicial review is a legal process that allows individuals or organisations to challenge the lawfulness of decisions made by public bodies, including government agencies and local authorities
• Prior to 1977, the party seeking relief within the Court's authority could only request one remedy
• Order 53 was changed in 1977, which led to a more unified legal framework regarding Judicial Review remedies
• Section 119 of the Constitution in Mauritius vests the Supreme Court with the power to conduct judicial review
• In the case of Yerriah v P.S.C (1974) MR 22, it is stated that the Supreme Court can exercise jurisdiction under Section 119 of the Constitution in relation to the question whether the respondent had in making the appointment concerned, performed its function in accordance with the Constitution or any other law
• Grounds for Judicial Review

  • Excess of power
  • Ultra-Vires rule
  • Abuse of power
  • Unreasonableness
  • Natural Justice
• Excess of Power

  When a public entity exceeds the authority granted to it by the Legislature
• Ultra-Vires

  When a public entity's actions or decisions go beyond the legal authority or powers granted to it
• Abuse of Power

  The use of authority for unlawful purposes, such as taking into account irrelevant factors or ignoring pertinent factors when making a decision
• Natural Justice

  The obligation to act justly, including the principles of Audi Alterem Partem (hearing both sides) and Nemo Judex in Re-Sua (prohibition against bias)
• Application for leave to apply for Judicial Review

  1. Submitted ex parte to the Supreme Court with an affidavit outlining the case's facts, the applicant's requested remedy, and the basis for that request

  2. The court determines if the evidence presented is a plausible argument for providing the applicant's requested remedy

  3. The applicant has an obligation to provide a complete and honest disclosure
• Application on the Merits (Substantive Judicial Review Application)

  1. The applicant must serve a Notice of Motion and affidavit to each party directly impacted and file the motion with the court within 14 days of the date of the leave grant

  2. The applicant may request that the case file be summoned up

  3. In extraordinary cases, it is also possible to request that an affidavit-filer be submitted for cross-examination
• Upholding the rule of law and making public authorities hold accountability for their actions are crucial functions of the UK's judicial review process, which is guided by the values of legality and equity
• In extraordinary cases, it is also feasible to request that an affidavit-filer be submitted for cross-examination
• The process outlined in Order 53 is consistent with the legality, accountability, and equity tenets that support the idea of judicial review in the legal system of the United Kingdom
• Judicial review is an essential process that allows people and groups to contest the legitimacy of decisions made by public authorities in the United Kingdom
• Order 53 would probably establish particular procedural norms and guidance for the conduct of judicial review procedures
• To guarantee a just and effective procedure, all parties participating in such instances are required to abide by the regulations established in Order 53
• Upholding the rule of law and making public authorities hold accountability for their actions, are crucial functions of the UK's judicial review process, which is guided by the values of legality and justice
• The applicant is contesting by way of judicial review the decision of the respondent taken on 10 February 2021 to appoint the co-respondent as Dean of the Faculty of Science
• The applicant is asking for an order to have that decision quashed, reversed, set aside or otherwise dealt with as may deem fit and proper by the Court and reasonable in the circumstances
• The appointment is for a period of three years
• Both the respondent and the co-respondent are resisting the application and pray that the application be set aside
• Leave was granted on 06 December 2022
• On the 11th January 2021, the respondent issued an "Internal Call for Expression of Interest" for the appointment as Dean of the Faculty of Science
• The deadline was fixed to the 25th January 2021
• The invited applicants had to be from the academic staff holding substantive appointment in the grade of Associate Professor or Professor
• The applicants had to submit their application in writing and in confidence to the Vice -Chancellor by the 25th January 2021
• Both the applicant and the co-respondent applied for the post
• The applicant is thus challenging the decision of the respondent to appoint the co-respondent as Dean of the Faculty of Science
• The applicant is challenging the decision of the respondent to appoint the co-respondent on the grounds that the respondent's decision and decision-making process was procedurally flawed, Wednesbury unreasonable, irrational, perceived to be biased, ultra vires section 15(2) of the Statutes, and in breach of the elementary rules of natural justice
• Procedurally flawed

  The co-respondent was allowed to use his position as acting Dean of the Faculty of Science to his advantage
• Wednesbury unreasonable

  The process was manifestly unreasonable as no reasonable authority entrusted with the respondent's powers and knowledge would have acted upon the co-respondent's Development Plan, would have allowed him to succeed at the first and second stages of the application and would have appointed the co-respondent as Dean
• Irrational


  The respondent's recruitment process violated the basic tenets of fairness, transparency and equal opportunity
• Perceived to be biased

  The respondent's Vice-Chancellor and the two Pro Vice-Chancellors who were on the Interview Panel were aware that co-respondent was unduly advantaged and had an edge over the applicant because the co-respondent was the recipient of the Departmental Operational Plans and the staff's views on Decentralisation, questioned the applicant on Decentralisation during the interview and must have questioned the co-respondent on the Decentralisation and the Development Plan
• Ultra vires section 15(2) of the Statutes


  The respondent's director of human resources was present throughout the interview and was aware of co-respondent's ploy to gain an undue advantage and acted ultra vires the Statutes by failing to guide/ advice the Interview Panel of the co-respondent's acts and doings
• Breach of the elementary rules of natural justice

  The respondent allowed the co-respondent to benefit unjustly and unfairly of his position as acting Dean of the Faculty to obtain sensitive, confidential and insider information so as to be in an advantageous position compared to applicant