The Concept Of Non Justiciability Flashcards Preview

M9113: Legal Methods > The Concept Of Non Justiciability > Flashcards

Flashcards in The Concept Of Non Justiciability Deck (8)
Loading flashcards...

What is technical non justifiability?

Sometimes a dispute is non justifiable, it’s a legal argument with consequences. Sometimes the court will refuse to hear it.


When does technical non justifiability apply?

- court has no jurisdiction
- party has no title: can’t sue on somebody else’s injury. TJ v SB (2017).
-action raised out of time


what is constitutional non justiciability?

this Separates executive from legislature and justiciary


what are some examples of constitutional non justiciability?

• Proceedings in Parliament (UK Parliament)
- You cannot interdict Parliament from passing legislation
 Even if legislation will damage your legal interest
- You cannot sue for defamation anything said in Parliament
- You can breach interdicts and injunctions with impunity in Parliament

• Acts of foreign states
- Cannot sue in the British courts, foreign courts.
- Example if a foreign state passes legislation where you lose your proepty you cannot sue in brittish cpurt
- Burma oil case 1963: the British government. when owners tried to get property back…
• Crown acts of state abroad
- Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1:
 Iraq war
 Brittish soldiers misbehaved in Iraq
 Rahmatullah and dozens of other Iraqi nationales were wrongfully detained by Brittish forces and were illegidly misused
 Brittish government accepted the detention was wrongful (you can sue for wrongful detention) and they accepted this
 They denied however, misuse and abuse to them
 House of lords said both claims were non-justiciable because they were acts done abroad.
• Proceedings contrary to constitutional principles
- Derbyshire County Council v. Times Newspapers [1993] AC 534
 Criticised decisions of DCC and got various acts wrong
 Council sued for
defamation, but it was non-justiciable

• Purely political decisions
- Appointment to Cabinet positions, conferral of honours
 Black v Chrétian (2001) 199 DLR 4th 228:

- Acts done under the Royal Prerogative.
 Cherry & Ors, Petrs 2019 CSOH 70; 2019 CSIH 49, 2019 UKSC 41


why don't courts answer theoretical questions?

because courts make decisions on actual disputes and must have real effect upon real people. Theory is not for the courts

There must be a CONSEQUENCE to the outcome of litigation.


how do courts address religious matters?

courts cannot resolve religious disputes, they are for religion to sort out, its non-justiciable.

e.g. expelling a member from a church is not justiciable: Highwood Jehovah’s Witnesses v Wall 2018 SCC 26


determine Conceptual Non-Justiciability

Matter cannot be resolved by normal judicial reasoning and evidence.

e.g. - The right to be loved: Jooste v Botha 2000
Famous sports person and well known in south Africa. He had a love child which he ignored. Child sued him due to lack of love

Matter is one for the appropriately appointed decision-maker


how does one avoid the Non-Justiciability Defence?

By turning the question into a legal question.

e.g. Khaira v Shergill 2014 constructed the argument as one of property law
- Sikh case, gathered money and built a large temple and appointed a holy saint, the title of temple was named of the hol saint and his successor. But both died so who owns temple, this is a religious issue.