Analysis of Judicial Review and writ jurisdiction under the constitution of Pakistan 1973

1. ANALYSIS OF JUDICIAL REVIEW AND WRIT
JURISDICTION UNDER CONSTITUTION OF
PAKISTAN 1973
L.L.M
BY
DR. SHEIKH MUHAMMAD
ADNAN
Dr. Sheikh Muhammad Adnan

2. JUDICIAL REVIEW
• Judicial review is a process under which executive or legislative actions are subject to
review by the judiciary.
• A court with authority for judicial review may invalidate laws and governmental actions
that are incompatible with a higher authority.
• Judicial review is one of the checks and balances in the separation of powers.
• The doctrine varies between jurisdictions, so the procedure and scope of judicial review
may differ between and within countries.
Dr. Sheikh Muhammad Adnan

3. JUDICIAL REVIEW IN USA
• According to alexander Hamilton, “the interpretation of the laws is the
proper and peculiar province of the courts. A constitution is in fact and
must be regarded by the judges as a fundamental law. It therefore
belongs to them to ascertain its meaning and meaning of an act passed
by the legislature.”
Dr. Sheikh Muhammad Adnan

4. ORIGIN OF JUDICIAL REVIEW IN USA
• The concept of judicial review was developed by chief justice Marshall of the
American supreme court in the famous Marbury v. Madison case of 1803.
• It was laid down that “the judiciary has the power to examine the laws made by the
legislature.”
• It was also declared that if any such law is found to be in violation of the
constitution, then such a law would be declared by the court as ultra-virus of the
constitution.
• While doing so the supreme court referred to article vi, section 2 of the constitution.
Dr. Sheikh Muhammad Adnan

5. ARTICLE VI, SECTION 2
• “This constitution and the laws of the united states which shall be made
in pursuance thereof; and all treaties made or which shall be made under
the authority of the united states, shall be the supreme law of the land,
and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding”
Dr. Sheikh Muhammad Adnan

6. Marbury v. Madison case of 1803.
• Case facts:
• Weeks before leaving office, president john Adams nominated William
Marbury and others to be justices of the peace in the district of Columbia.
Their nominations were confirmed and commissions signed by the
president, but the secretary of state, john Marshall, had not delivered them
by the time Thomas Jefferson became president. Jefferson‟s new secretary
of state, James Madison, refused to deliver the commissions of Marbury and
three others. The four men requested that the supreme court issue a writ of
mandamus ordering delivery under its original jurisdiction authorized in the
judiciary act of 1789.
Dr. Sheikh Muhammad Adnan

7. Marbury v. Madison case of 1803.
• HELD: john Marshall declared that although Marbury had right to
receive the commission but the court could not issue the writ of
mandamus. The constitution is the supreme law of the land. The
authority given to the supreme court to issue writs of mandamus to
public officers, appears not to be warranted by the constitution;
therefore, the court can not force Madison to deliver the commissions.
Dr. Sheikh Muhammad Adnan

8. OBJECTIVES OF JUDICIAL REVIEW
• Judicial review as formulated by chief justice Marshall of the American
supreme court had a number of objectives:
• To uphold the principle of the supremacy of the constitution.
• To maintain federal equilibrium i.e. Balance between the center and the
states.
• To protect the fundamental rights of the citizens
Dr. Sheikh Muhammad Adnan

9. PURPOSE OF JUDICIAL REVIEW
• Judicial review should be understood in the context of two distinct legal
systems:
• 1. Civil law and
• 2. Common law; and also by two distinct theories of democracy:
• Doctrines of legislative supremacy and
• The separation of powers for a much better study ad analysis for the
reasons which follows.
Dr. Sheikh Muhammad Adnan

10. SCOPE OF JUDICIAL REVIEW
• The scope of judicial review depends upon whether a given function is
administrative or judicial in nature. The administrative finding of facts
is not generally reviewed unless it goes to the very jurisdiction or the
findings are manifestly wrong in which case they are likely to be
characterized as flawed in point of law.
Dr. Sheikh Muhammad Adnan

11. JUDICIAL REVIEW IN FRANCE
Dr. Sheikh Muhammad Adnan
• The concept of review of order of administrative bodies by the ordinary courts is
foreign to civil law countries like France and west Germany.
• Court structure in France has been strictly separated into distinct jurisdictions: judicial
courts and administrative courts. These two exercise their jurisdictions independent of
each other and orders passed by courts of one side cannot be reviewed by other side.
• The council of state has the highest administrative jurisdiction and is also a court of
original jurisdiction in several administrative actions.

12. JUDICIAL REVIEW IN FRANCE
Dr. Sheikh Muhammad Adnan
• Due to administrative reforms, carried out by the decree of September 30, 1953,
(modified by the decree of June 11, 1954), a number of administrative tribunals were
created with original jurisdiction in most administrative matters.
• A court of conflicts has been constituted, consisting of judges of both jurisdictions,
which settles conflicts between judicial and administrative courts.

13. JUDICIAL REVIEW IN BRITAIN
Dr. Sheikh Muhammad Adnan
• In England the idea of an administrative adjudicatory authority was thought to be
inconsistent with the maintenance of rule of law.
• Influential writer a v dicey wrote: “in England and in countries which, like the united
states, derive their civilization from English sources, the system of administrative law
and the principles upon which it rests are in truth unknown”.

14. JUDICIAL REVIEW IN BRITAIN
Dr. Sheikh Muhammad Adnan
Today Britain's administrative law has fully recovered from dicey‟s denial of its
existence.
• In the post war period in Britain tribunals and administrative bodies started to deal
with the problems of war and since they have stayed in Britain.
• In 1967 an act was passed named as “parliamentary commissioner act” under which
the office of parliamentary commission was set up to deal with maladministration in
tribunals.

15. JUDICIAL REVIEW IN PAKISTAN
Dr. Sheikh Muhammad Adnan
In Pakistan the development of judicial review of administrative action has followed
that of Britain and USA. There has been no marked opposition to the administrative
process but it has been accepted as imminent of national planning and growth of the
welfare state.

16. POWER OF JUDICIAL REVIEW UNDER
ARTICLE 199 OF THE CONSTITUTION OF
PAKISTAN, 1973
Dr. Sheikh Muhammad Adnan
Jurisdiction of high court.
• Article 199, clause 1 states:
• subject to the constitution, a high court may, if it is satisfied that no other adequate
remedy is provided by law,-
• (a) on the application of any aggrieved party, make an order-
• (i) directing a person performing, within the territorial jurisdiction of the court,
functions in connection with the affairs of the federation, a province or a local authority,
to refrain from doing anything he is not permitted by law to do, or to do anything he is
required by law to do; or
• (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of
the court by a person performing functions in connection with the affairs of the
federation, a province or a local authority has been done or taken without lawful
authority and is of no legal effect; or

17. POWER OF JUDICIAL REVIEW UNDER
ARTICLE 199 OF THE CONSTITUTION OF
PAKISTAN, 1973
Dr. Sheikh Muhammad Adnan
(B) on the application of any person, make an order-
• (i) directing that a person in custody within the territorial jurisdiction of the court be
brought before it so that the court may satisfy itself that he is not being held in custody
without lawful authority or in an unlawful manner; or
• (ii) requiring a person within the territorial jurisdiction of the court holding or
purporting to hold a public office to show under what authority of law he claims to hold
that office;
• (c) on the application of any aggrieved person, make an order giving such directions to
any person or authority, including any government exercising any power or performing
any function in, or in relation to, any territory within the jurisdiction of that court as may
be appropriate for the enforcement of any of the fundamental rights conferred by chapter
1 of part 11.

18. THE JURISDICTIONAL PRINCIPLES
/DOCTRINE OF ULTRA VIRES
Dr. Sheikh Muhammad Adnan
ULTRA VIRES • ultra vires is a Latin phrase meaning literally "beyond the powers"
• “If an act requires legal authority and it is done with such authority, it is characterized
in law as intra vires (literally "within the powers";
• Acts that are intra vires may equivalently be termed "valid" and those that are ultra
vires "invalid“
SCOPE
• most fundamental concepts in administrative law
• The doctrine of ultra vires stands for the acts, which are for any reason in excess of
power, are often described as being outside jurisdiction.
• Professor wade declares "any administrative act or order, which is ultra vires or outside
jurisdiction, is void in law".

19. THE JURISDICTIONAL PRINCIPLES
/DOCTRINE OF ULTRA VIRES
Dr. Sheikh Muhammad Adnan
Doctrine of ultra vires is in fact is a scale for the measurement of delegated legislation,
its validity and the proper observance of procedure created by the said legislation. The
doctrine is of two kinds:
• SUBSTANTIVE ULTRA VIRES: the situation where the executive authorities enact
laws or rules, for which they are not authorized by the parliament.
• PROCEDURAL ULTRA VIRES: when the authorities fail to follow the procedural
requirement prescribed by the statutes.

20. IMPORTANCE OF JUDICIARY
Dr. Sheikh Muhammad Adnan
• One peculiar aspect of all south Asian countries, particularly Pakistan, is that socio-
economic conditions are extremely oppressive
• the government machinery, in each one of these countries, has become an instrument
in the hands of the corrupt elite to oppress the common man.
• Instead of getting justice from the administration, the common citizens need protection
from its officials.
• Independence of judiciary in Pakistan is its ability and capacity to support and
protection of the rights of the citizens.

21. REVIEW UNDER THE JURISDICTION
PRINCIPLE
Dr. Sheikh Muhammad Adnan
• In the theory, jurisdictional principle enables that courts merely
to prevent the authorities from acting in excess of their powers but
in reality, they have increasingly entered into the heart of the
subject matter by interfering on grounds of reasonableness, bad
faith, extraneous considerations, unfairness, manifest injustice,
arbitrariness.

22. REVIEW UNDER THE JURISDICTION
PRINCIPLE
Dr. Sheikh Muhammad Adnan
To what extent does the jurisdiction principle enable the reviewing courts to
control the exercise of power by the administrative authorities?
• Principles applied in Pakistan examined below:
1. Reasonableness
2. Improper motives/ Malafide
3. Irrelevant considerations
4. Acting under dictation
5. Abdication of authority
6. Subjective discretion

23. REVIEW UNDER THE JURISDICTION
PRINCIPLE
Dr. Sheikh Muhammad Adnan
To what extent does the jurisdiction principle enable the reviewing courts to
control the exercise of power by the administrative authorities?
• Principles applied in Pakistan examined below:
1. Reasonableness
2. Improper motives/ Malafide
3. Irrelevant considerations
4. Acting under dictation
5. Abdication of authority
6. Subjective discretion

24. MODES OF JUDICIAL REVIEW
Dr. Sheikh Muhammad Adnan
Following are the modes of judicial review of administrative action
• Public Law Review,
• Private Law Review

25. MODES OF JUDICIAL REVIEW
Dr. Sheikh Muhammad Adnan
•Public law review •
• an important aspect of public law review is not only enforcement of private right
but to keep the administrative and quasi-administrative machinery within proper
control.
•Constituency of public law review • under the provision of article 184 (3) and 199
of pakistan constitution. The supreme court and high court have power to issue writs
in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warrants.
Limits on public law review principles or the limits on public law review, the
presence of which is quite mandatory for the issuing of writs are mentioned • laches
or unreasonable delay • alternative remedy • res judicata

26. MODES OF JUDICIAL REVIEW
Dr. Sheikh Muhammad Adnan
•MODES OF PUBLIC LAW REVIEW following are the different kinds of writs
which can be issued on certain grounds by supreme court and high court
• habeas corpus
• mandamus
• prohibition
• certiorari
• quo warranto

27. MODES OF JUDICIAL REVIEW
Dr. Sheikh Muhammad Adnan
•Private Law Review
• Private law review refers to the ordinary courts of the land, exercised in
accordance with the ordinary law to control administrative authorities and their
actions.
Modes of private law review
• Private Law review can be exercised through following modes:
• Injunctions
• Declaratory actions
• Suit for damages

28. LIMITS OF JUDICIAL REVIEW
Dr. Sheikh Muhammad Adnan
• No interference will be made by any court where the action of administrative authority
is within jurisdiction.
• The superior court cannot review where the possible interpretation has been made by
lower court or tribunals.
• That the court does not interfere with an administrative bodys determination of facts
except when its conclusion is not supported by any evidence at all. • Sufficiency of
evidence cannot be reviewed