OUSTER CLAUSES, JUDICIAL REVIEW AND GOOD GOVERNANCE: AN EXPOSITORY STUDY OF THE EXPERIENCE IN NIGERIA AND MALAYSIA
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Date
2012
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Publisher
OIDA
Abstract
Ouster clauses are provisions in the statutes
that take away or purport to take away the
jurisdiction of a competent court of law. It denies the
court the ability to make any meaningful contribution
with respect to matters relating to sustainable
development and good governance brought before the
court. In fact, it seeks deny the litigant any judicial
assistance in respect of the matter having bearing on
sustainable development and good governance
brought before it. The legislature seeks, by the
enactment of ouster clauses, to deny the court the
power of judicial review in respect of the matter in
which its jurisdiction has been ousted. Ousting the
jurisdiction of the court is a reaction from the
legislative arm of government to the increasing
powers of the court in respect of judicial review of
certain disputes. Thus, democracy with calls for
constitutionalism has gained more recognition in
many parts of the world. Given the general functions
of judiciary as one of check and balance mechanisms
in democracy, most people and government have
developed interest in the judiciary and judicial
process. Despite this, the benchmark of academic
discourse seems to argue that courts’ hands are tied
and should not review matters having to do with
ouster clauses. This paper therefore makes an
analytical exposition into the attitude of the courts in
Nigeria and Malaysia to matters having to do with
ouster of courts’ jurisdiction. It reveals the reactions
of courts to constitutional ouster clauses and the ones
contained in statutes and analyses how judicial
review of the clauses can help promote good
governance and sustainable development. The
objective is to improve the quality of courts’
decisions and aid law reform in this area of law. It
therefore hypothesizes that review of ouster
provisions by the courts promotes constitutional
justice, democratic principles, good governance,
sustainable development and reduces injustices in the
polity. For the purpose of the analysis, various
constitutional provisions and courts’ decisions from
the countries under review are examined.
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Keywords
constitutionalism, good governance, judicial review, ouster clauses, sustainable development
Citation
OIDA International Journal of Sustainable Development