oa Comparative and International Law Journal of Southern Africa - Justiciability and standing to challenge legislation in the Commonwealth: a tale of the traditionalist and judicial activist approaches
A court will not entertain an application for judicial review of legislation where the applicant does not disclose his/her right, interest or legitimate expectation on the subject matter of the complaint. This requirement of public adjudication is a vital component of the principle of justiciability. Originally developed as a principle of administrative law, this requirement has been imported into constitutional adjudication by the courts through their interpretation of the provisions of the constitution. This is the case in the United States, Australia, Nigeria and Zimbabwe where the law of standing remains in the traditionalist domain. Although the common law of standing has witnessed flashes of judicial activism in recent years owing to the sporadic judicial broadening of its base, it is the Canadian courts that have developed a systematic approach to the subject. They have developed four identifiable and guiding rules whereby citizens genuinely desirous of challenging the constitutionality of legislation, are granted standing in the discretion of the courts. The litigant can approach the courts in his/her own capacity, in the public interest or, where the party was brought on a criminaly charge or civil suit, in defence of such charge or claim. This paper critically analyses the foregoing developments.
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