Irrationality (Unreasonableness)

Question

It is a principle of law that in judicial review, the court is not concerned with merit of the decision made so as to have the court substitute the decision made by the public officer with that of the court. Instead, the court in judicial review is concerned with the decision making process. Meaning, in judicial review, the court is concerned with whether the decision made is not ‘illegal’ and is not ‘procedurally’ incorrect. This is true when the ground for judicial review is illegality and procedural impropriety. The Supreme Court of Zambia in the case of Dean Namulya Mung'omba & 2 others v Peter Machungwa & 2 Others49 stated as follows at page 21:
"Judicial review is concerned with the decision-making process. Whether the tribunal had to act in the matter, whether they followed the procedure, whether they exceeded their jurisdiction and matters of procedural nature. Judicial process is not concerned with the merits of the decision…..
However, when the ground for judicial review is irrationality, also known as unreasonableness, the court can consider the merit of the decision made, and even substitute the decision of the decision maker with that of the court (see the case of the Attorney General50v Roy Clarke).
Under Lord Diplock’s classification, a decision is irrational if it is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.” This standard is also known as Wednesbury Unreasonableness, after the decision in Associated Picture Houses Ltd v Wednesbury Corporation where it was first imposed.
It follows therefore that it is important to note that unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether
49 SCZ Judgment No. 3 of 2003
50SCZ Judgment Appeal No. 96A/2004
71
the decision “makes sense.” In many circumstances listed under “illegality” above, the decision may also be considered irrational.
In addition, it is important to note that unreasonableness as a ground for judicial review arises in situations concerning the use of discretionary powers. This is so in that the exercise of discretionary powers must be exercised reasonably.
i. Proportionality
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. However, proportionality is not yet a separate ground of judicial review, Although Lord Diplock alluded to the possibility of it being recognized as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational. (See the case of The Attorney General v Roy Clarke in which the Supreme Court of Zambia held the decision of the Minister to deport the respondent from Zambia was disproportionate to the acts done by the respondent). summarize and explain in simple terms

Answer 1

The principle of irrationality, or unreasonableness, in judicial review revolves around how decisions are made by public officials rather than the decisions themselves. In judicial review, the court checks if a decision is legal and if the correct procedures were followed, especially under the grounds of illegality and procedural impropriety.

However, when it comes to the ground of irrationality, courts can evaluate the reasonableness of a decision. They can even replace the original decision with their own if they find it to be truly unreasonable. This idea comes from Lord Diplock’s classification of what constitutes an irrational decision, which he defined as one that is "so outrageous" that no sensible person could have made it. This concept is often referred to as Wednesbury Unreasonableness, stemming from a historical case.

Thus, unlike the cases of illegality and procedural impropriety, where only the process is scrutinized, with irrationality, the court looks at whether the decision itself makes logical sense.

Additionally, the issue of proportionality relates to how decisions should be balanced against their intended goals. For instance, if authorities decide to ban a protest for public safety, they should consider if there are less extreme measures, like rerouting the march, that can achieve the same outcome. While proportionality is not yet an established legal ground for judicial review, it can support claims of irrationality when a decision appears excessively harsh or unreasonable compared to the situation at hand.

In summary, irrationality allows courts to assess the reasonableness of decisions, and while proportionality is not formally recognized yet, it can be wielded as a supporting argument for claims of irrationality in making judicial decisions.