UNIT EIGHT REMEDIES ANS GOVERMENT ADMINISTRATIVE LIABILITY REMEDIES

UNIT EIGHT: REMEDIES ANS GOVERMENT (ADMINISTRATIVE) LIABILITY

• • • REMEDIES AND GOVERMENT (ADMINISTRATIVE) LIABILITY Remedies and rights have important correlation/relationship. Whenever rights are threatened or violated, people need the intervention of the law. It is the law that provides appropriate remedies proactively, or retrospectively. Administrative law is one of the most important laws that regulate the relationship between the strong-armed administrative bodies and week individuals. .

• In addition to providing general principles and standards of behavior regarding the administration, Administrative law tries also to devise mechanisms for rectifying administrative illegality. • So, this unit, tries to explore various types of remedies that may be granted by the reviewing court in appropriate circumstances

1 Remedies • The term remedy in this context refers to the varieties of awards/ dismisses that may be granted by the reviewing court following an application for judicial review. • A person complained against the agency decision has to include in his or her application for judicial review the type(s) of order or redress he or she sought from the reviewing court. Thus, the relief that the applicant seeks from the reviewing court is what we call remedy.

• Remedies are classified into public law remedies and private law remedies. • Those included within the category of public law remedie are: • certiorari-diidid (a quashing order), prohibition (prohibiting order), • mandamus (mandatory order), • Quo Warranto, and • Habeas Corpus,

• whereas private law remedies include • injunction-amar rebitaan, • declaration-qoraal rasmi ah and • damages-mag dhow.

• Despite the classification of these remedies into public law and private law remedies, both types of remedies have been now used in many common law jurisdictions as remedies in public law. • At the outset, (bilowga hore) it has to be noted that each of the remedies listed above are not mutually exclusive (gaar u ah)

Public Law Remedies • The primary purpose of judicial supervision of the administration is to restrain the latter (administration ) from operating within the bounds of the law. • So, public law remedies of public law, in the English tradition, have primarily been used to ensure whether or not the government machinery operates properly.

• Due to this fact, it is said that these remedies are more liberally granted than the private law remedies that are mainly concerned with the enforcement of private rights. • Public law remedies are widely used to rectify administrative wrongs through the process of judicial review are discussed below.

Certiorari • The writ of certiorari is a procedure through which the reviewing court investigates the legality of an agency‘s decision complained of, and will quash or nullify where the decision in question is found to be ultra vires. • Thus, if a person feels aggrieved because of ultra vires administrative acts affecting his interest, it is advisable for him or her to invoke judicial review within the allowable period of time lest the illegal administrative decision may be turned to legality. • Normally, where certiorari is granted by the

• Thus, certiorari has retrospective/retroactive effect - nullifying an already made illegal or ultra vires act, • whereas prohibition has a prospective/future effect - it stops the continuity of an ongoing course of action or restrains the execution of an already made decision. • Thus, while certiorari has nullifying effect, prohibition has preventive effect.

Prohibition • The order of prohibition, performs the function of ordering a body amenable (macquul) to it to refrain from illegal action. • Prohibition is an order issued by a higher court to prevent an inferior tribunal or administrative authority from exceeding or from continuing to exceed its authority, or from behaving ultra virally while dealing on matters that affect the interest of the complainant. • The striking contrast between certiorari and prohibition is that, while certiorari quashes what has been already done, ultra virally restrains a government body from taking a certain course of ultra vires action.

• The applicant may seek both certiorari (quashing order) and prohibition (prohibiting order) in conjunction; for example, certiorari to quash the decision in question and prohibition to prevent the execution of the nullified decision or the taking of other particular action.

Mandamus • Mandamus (mandatory order) is the other important public law remedy that deals with agency inaction. • Certiorari and prohibition are concerned with control of the exercise of discretionary powers, whereas the order of mandamus is designed to enforce the performance by governmental bodies of their duties. • Mandamus may also be used to compel the decision-maker to exercise his/her discretion properly.

• Mandamus (a mandatory order) is often applied for in conjunction with certiorari (a quashing order). • Mandamus sometimes issues in conjunction with certiorari to require a body whose decision has been quashed to go through the decision-making process again.

Quo Warranto • Quo warrant was originally a prerogative writ which the Crown [in the United Kingdom] could use to inquire into the title to any office or franchise/contract claimed by the subject. • It fell out of use in the sixteenth century. Since 1938, the injunction has been made available by statute to prohibit the usurpation of public office, in place of the former proceeding known as quo warranto.

• The Act 1938, in turn, was replaced by the Supreme Court Act, of 1981, which provided that, where any person acts in an office to which he is not entitled an information would previously have lain against him, the High Court may restrain him by injunction and may declare the office to be vacant if may need be; • Consequently, the old law of quo warranto is still operative, but the remedy is now injunction and declaration. • ‘.

Habeas Corpus • The writ of habeas corpus (produce the body) is used to obtain the release of someone who has been unlawfully detained, e. g. , wrongfully arrested. • It is a procedure through which an illegally detained person applies to the court requesting an order for his physical release. • It serves as a modality for securing the liberty of a person by affording an effective means of immediate release from unlawful or unjustified detention.

• Habeas corpus referred to as the ―Great Writ‖ in common law, has traditionally maintained high reputation as a safeguard of personal liberty. • Currently, it is an attempt to measure up to the standards of human rights and fundamental freedoms which entitle the detainee to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered, if the detention is found to be unlawful.