Should The New Constitutional Dispensation Warrant A Shift? Essay
The new constitutional dispensation warrants a shift in the approach to judicial review on the ground of errors of law from the common law approach. This essay will argue that the shift has already occurred, but it is not a case of leaving the old ways of doing things in the past. By exploring the evolution of the common law approach and the concept of deference, this essay will seek to show how this shift in approach has moved away from an arbitrary distinction that served as a way to oust the jurisdiction of the judiciary, to an approach that acknowledges the power and competence of the judiciary to review on the ground of review of error of law without creating a meddlesome judiciary. This shift has been necessary to reduce the dependence on judicial review as a conduit to reviewing administrative action, in order to develop internal appeal bodies and tribunals to promote efficiency, transparency and accountability within our government.
Deference and judicial review
The controversy around the ground of review of error of law plays out in the greater context of the conflict that judicial control of administrative action creates . This is a tension between ‘empowering officials and giving them the necessary freedom to do their jobs and to control these powers in order to protect…