By Evarist Baimu Nyaga Mawalla - Home

egulation” may be misleading. The panel regulates not only itself, but all others whohave no to alternative but to come to the market in a case to which the code applies.Mr. Alexander urged on us the importance of speed and finality in these matters Iaccept that submission. I accept also the possibility the unmeritorious applications will bemade from time to time as a harassing or delaying tactic. It would be up to the court toensure that this does not happen. These considerations are all very relevant to the exerciseof the court’s discretion in particular cases. They mean that a successful application forjudicial review is likely to be very rare. But they do not mean that we should declinejurisdiction altogether.So long as there is a possibility, however remote, of the panel abusing its greatpowers then it would be wrong for the courts to abdicate responsibility. The courts mustremain ready, willing and able to hear a legitimate complaint in this as in any other fieldof our national life.I am not persuaded that this particular field is one in which the courts do not belong orfrom which they should retire, on grounds of policy. And if the courts are to remain in thefield, then it is clearly better, as a matter of policy, that legal proceedings should be in therealm of public law rather than private law, not only because they are quicker,but alsobecause the requirement of leave under R.S.C..Ord 53 will exclude claims which areclearly unmeritorious.So I turn to Mr. Alexander’s more technical argument. He starts with the speechof Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service(1985) A.C 374,409:“For a decision to be susceptible to judicial review the decision maker must beempowered by public law (and not merely, as in arbitration, by agreement betweenprivate parties) to make decisions that, if validly made, will lead to administrative actionor abstention from action by an authority endowed by law with executive powers, whichhave one or other of the consequences mentioned in the preceding paragraph.The ultimate source of the decision – making power is nearly always, nowadays a statuteor subordinate legislation made under the statute; but in the absence of any statuteregulating the subject matter of the decision the source of the decision-making powermay still be the common law itself, i.e, that part of the common law that is given bylawyers the label of the prerogative.Where this is the source of decision-making power, the power is confined to executiveofficers of central as distinct from local government and in constitutional practice isgenerally exercised by those holding ministerial rank.On the basis of that speech, and other cases to which Mr. Alexander referred us,he argues (i) that the sole test whether the body of persons is subject to judicial review is171