The time has come for the legal fraternity in the common law jurisdictions to abandon

Wednesbury unreasonableness and give it a decent burial. Discuss.

To answer this question, it is necessary to understand the basis and history of the
Wednesbury review and its development in order to justify that the Wedenesbury
Unreasonableness born out of the case itself should sustain.

1. Brief history of the Wednesbury review and its objective

Judicial review at common law is an inherent supervisory jurisdiction of the High Court over the
validity of action or decision making process by the public authority, but not to review the merit
of a decision that has been made.
Traditionally, the judicial review is laid down in a UK case of Wednesbury in 1940 which
provided 2 limbs to the test of unreasonableness namely the Super Wednesbury Unreasonableness
and the Sub Wednesbury Unreasonableness. The former means a decision that is so unreasonable
at its highest degree that no reasonable officials or authorities could have arrived to such a
decision and the latter means an abuse of discretionary power such as a decision that is tainted by
mala fide ( in the case of Sunayah), influenced by an improper purpose (Sri Lempah case, Sydney
Municipal v Campbell), setting aside relevant consideration (Tan Tek Seng v SPP), and taking
into account irrelevant consideration ( Padfield v Ministry of Agricultural and Fisheries).
Subsequently, the CCSU case in 1985 came about and it then recategorised or rationalised
the two limbs of Wednesbury unreasonableness into 3 categories namely illegality, irrationality
and procedural impropriety and these are the grounds that will mandate a judicial review. Also not
to forget that the CCSU case also mentions that there is a possibility for proportionality to be
featured as the fourth ground of review.
The Wednesbury unreasonableness is the basis and pillar of administrative review and should
not be discarded easily.
2. Comparison of the Wednesbury review amongst some common law jurisdictions
In South Africa, S 33 (1) of the South African Constitution provides that just administrative
action must be lawful, reasonable and proceduraly fair. S 33 (1) is also part of the Bill of Rights
found in S 7 to S 39 of the South African Constitution. This means that just administrative action
is fundamental to the rights of the citizens.

In Maldives, administration action is governed by S 43 of the Constitution which fair

administrative action is lawful, procedural fair and expeditious.
In the case of Fijian Constitution, it is found in S 16 which provides 5 grounds for a just
administrative action namely it must be lawful, rational, proportionate, procedural fair and
reasonably prompt.
There have been questions raised whether it is time to discard the Wednesbury
unreasonableness and to replace it with the ground of proportionality, which is raised as a
potential ground in the CCSU case. The answer to this should be negative. In the case of Pbrabha
D. Kanan, the court has discarded the Wednesbury unreasonableness and replace it with the
doctrine of proportionality. This should not be right as the doctrine of proportionality should
come under the umbrella of unreasonableness which means that the concept of
unreasonableness should still be part of the law of administrative review.
In the case of Maldives which includes expeditious in S 43, this is actually difficult to
justify as putting the government to act expeditiously could something be tough. Expeditious
action could well be covered under the doctrine of reasonableness and as such the Maldives
Constitution should include reasonableness as a category in S 43 just like the Fijian where their
reasonably promptness is included in S 16 of the Fijian Constitution.
It may be well referring to the S 33(1) of the South African Constitution and in promoting a
fair administrative action, PAJA ( Promotion of Administrative Justice Act 2000) was enacted.
Also worth mentioning that the Rules of Procedure for Judicial Review of Administrative
Action 2009 and the Regulations On Fair Administrative Procedures, 2002 were enacted.
As a conclusion, the Wednesbury unreasonableness is still important and should still very
much be kept alive and sustained.