The Concept Of Non Justiciability

Question 1

What is technical non justifiability?

Answer 1

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

Question 2

When does technical non justifiability apply?

Answer 2

• 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

Question 3

what is constitutional non justiciability?

Answer 3

this Separates executive from legislature and justiciary

Question 4

what are some examples of constitutional non justiciability?

Answer 4

• 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

Question 5

why don’t courts answer theoretical questions?

Answer 5

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.

Question 6

how do courts address religious matters?

Answer 6

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

Question 7

determine Conceptual Non-Justiciability

Answer 7

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

Question 8

how does one avoid the Non-Justiciability Defence?

Answer 8

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.