JUDICIAL REVIEW• Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution).
NEED FOR JUDICIAL REVIEW• The function of judicial review is to act as “a check against excess power in derogation of private right” yet it cannot supervise all administrative adjudications for it exists to check, not to supplant them.
SCOPE• 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.
RATIONALE• Through past experiences it has been learned that if the executive is allowed to exercise its powers unchecked by the judiciary, it may become colored with capriciousness, political influences and arbitrariness etc. so this makes up the historical rationale for judicial review.
PRACTICE AND CONCEPT OF JUDICIAL REVIEW:• The concept of judicial review has developed in countries like England, US, and also Pakistan and India.
FRANCE• 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.
• 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.
BRITAIN• 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”.
• 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.
PAKISTAN:• 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.
POWER OF JUDICIAL REVIEW UNDER ARTICLE 199 OF THE CONSTITUTION OF PAKISTAN, 1973• 199. 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
• (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.
THE JURISDICTIONALPRINCIPLES /DOCTRINE OF ULTRA VIRES
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".
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.
IMPORTANCE OF JUDICIARY• 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.
REVIEW UNDER THE JURISDICTION PRINCIPLE• 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.
• 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
REASONABLENESS• The doctrine of reasonableness has been adopted in the rule that powers, particularly discretionary ones, have to be exercised “judiciously and not arbitrary or capriciously”.• Arbitrary exercise of jurisdiction has been called abuse of jurisdiction. Where the land could be auctioned for „public purpose‟, if the „immediate need‟ for possessing it was established, the order of requisition was held arbitrary, since the requirement of public purpose and immediate need were not provided.
IMPROPER MOTIVES/ MALAFIDE• A malafide order means that which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior motive.• The court can inquire the motives of the authorities passing order when such orders are under review. Where the government issued notifications for acquisition of land, declaring that the land was needed for a „public purpose‟ while in fact it was required for a commercial company, the acquisition was held invalid.
IRRELEVANT ACTING UNDERCONSIDERATIONS DICTATIONIt is an established principle Discretionary powers mustthat in exercising be exercised only by thediscretion, the authorities persons authorized by themust have regard to all statute. One of the rules torelevant considerations and ensure this policy is thatdisregard all irrelevant the persons so authorizedconsiderations. must not act under dictation
ABDICATION OF SUBJECTIVEAUTHORITY DISCRETION Exercise of subjective discretion by authorityPersons invested with allowed under an enactmentdiscretion must exercise it has been brought underproperly and are not judicial reviewallowed to „surrender their Expressions such as” shallpower‟ to any other make such orders as it mayauthority. think fit” do not allow to make a fanciful or capricious order unrelated to the case before it.
MODES OF JUDICIAL REVIEWFollowing are the modes of judicial reviewof administrative action Public Law Review Private Law Review
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 REVIEWPrinciples 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
LACHES OR UNREASONABLE DELAYThrough writ issuing power of Supreme Court and the highCourt is mandatory, however the court may refuse remedy ifthere is unreasonable delay in invoking the jurisdication ofthe court.Unlike limitation there is no fixed period for laches. Everycase will be determined on its own merits. ALTERNATIVE REMEDY:The Supreme Court or High Court cannot issue writ ifalternative remedy is available.Exception: if the person complaints of violation offundamental rights the Supreme Court and High Courtcannot refuse relief U/A 184(3) and 199 on the ground ofalternative remedy.
RES JUDICATA• The principle of Res Judicata which is grounded on public policy applies in the public review area also.• The principle also applies in cases for the enforcement of fundamental rights
MODES OF PUBLIC LAW REVIEWFollowing 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
• MANDAMUSto do anything he is required by law• HABEAS CORPUS to do directing that a person in custody• PROHIBITION within the territorial jurisdictionfunctions in connection with the of the Court be brought before it affairs of the Federation, a so that the Court may satisfy Province or a local authority, to itself that he is not being held in refrain from doing anything he is custody without lawful authority not permitted by law to do. or in an unlawful manner.• CERTIORARI functions in connection with the affairs of the Federation, a • QUO WARRANTO Province or a local authority has been done or taken without requiring a person within the lawful authority and is of no territorial jurisdiction of the Court legal effect holding hold a public office to show under what authority of law he claims to hold that office
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
INJUNCTIONS• Injunction is a judicial process by which one who has invaded or is threatening to invade the rights, legal or equitable of another, is restrained from continuing or commencing such wrongful act.
DECLARATORY ACTIONS• A declaratory action signifies a judicial remedy, which conclusively determines the rights of the parties.• Any person entitled to legal character may institute a suit against any person denying such character, and the court may in its discretion make there a declaration that he is so entitled.
SUITS FOR DAMAGES• An action for damages used to lie against the local authorities or public corporations.• A corporation which has the same liability as any individual has, in all civil matters, can be liable for the acts of his servant acting within the scope of his employment.
NATURAL JUSTICE• Def:• Natural justice is also known as “substantial justice”, ”fundamental justice” and “universal justice”. the principals and procedures that govern the adjudication of the disputes between persons and organizations, chief among which are that the adjudication should be unbiased and given in good faith, and that each party should have equal access to the tribunal and should be aware of arguments and documents adduced by the others
PRINCIPLE OF NATURAL JUSTICE:Rules of natural justice to be read as part and parcel of every statute. PRINCIPLES OF NATURAL JUSTICE UNDER TRADITIONAL ENGLISH LAW:The traditional English law recognizes two principles of natural justice.NEMO INDEX IN CAUSA SUA “No man shall be a judge in his own case”AUDI ALTERAM PARTEM: “hear to other side”
BIAS OR INTEREST OR NO MAN SHALL BE A JUDGE IN HIS OWN CASE: The first principle of natural justice based three maximums of common law.• No one shall be a judge in his own cause• Justice should not only be done, but manifestly and undoubtedly be seen to be done• Judges, like ceaser‟s wife should be above suspicion APPLICATION:This principle applies not only to judicial proceedings but also to quasi-judicial as well as administrative proceedings
BIAS EXPLANATION• The judge should be impartial & neutral and must be free from bias• He is supposed to be indifferent to the parties to controversy• He cannot act as a judge of a cause in which he has some interest• He must be in a position to act judicially and to decide the matter objectively• It is well settled principle that justice should not only be done but manifestly and undoubtedly be seen to be done.
TYPES OF BIAS Following are the types of bias:• Pecuniary bias• Personal bias• Preconceived notion bias
PECUNIARY BIAS:As regard to pecuniary interest, the least pecuniaryinterest in the subject matter of the litigation willdisqualify any person from acting as a judge.PERSONAL BIAS: Personal bias arises from a certain relationshipequation between the deciding authority and theparties. Here a judge may be a relative, friend orbusiness associate of a party. He may have somepersonal grudge, annuity or grievance or professionalrivalry against him.
STATE OF V.P V/S MOHD NOOHHELD: the SC quashed the administrative action on the ground that when the presiding officer himself becomes a witness, there is certainty of a real likelihood of bias against the constable.PRECONCEIVED NOTION BIAS: Bias arising out of preconceived notion is very delicate problem of administrative Law. On the one hand no judge as human being is expected to sit as a blank sheet of paper. On the other hand preconceived notion would vitiate a free trial.
AUDI ALTERAM PARTEM “Audi Alteram partem” is the basic principle Natural Justice.it simply means, hear the other side that is no man should be condemned, punished or deprived of property in any judicial or quasi-judicial proceedings unless has an opportunity of being heard.ELEMENTS OF MAXIM: This maxim includes two elements:• Notice• Hearing
NOTICE: Before any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. Any order passed without giving the notice is against the principle of natural justice.NOTICE MUST BE PROPERLY SERVED: A notice to be valid and effective must be properly served to the concerned person
SUFFICIENT TIME BE GIVEN: A sufficient time must be given to enable the individual to prepare his case.NOTICE MUST BE ADEQUATE: A notice which merely repeats the statutory language without giving other facts and other particular is insufficient and inadequate.CLEAR AND UNAMBIGUOUS: The grounds given in the notice on which the action is proposed to be taken should be clear, specific and unambiguous.
MODES OF SERVING NOTICE:Following are the modes of serving notice• Delivering to him by hand• Sending it to him by registered post• On failure of both above grounds,• Affixing it on the outer door of the residence
HEARING The second requirement is that the person concerned must be given an opportunity of being heard before any adverse action is taken against him and no one should be condemned unheard. CONDITIONS OF HEARING: A hearing to be fair must fulfill following conditions• Receiving evidence produced by individual• Disclosure of material to the party• Opportunity to cross-examine witness
EXEMPTION OF PRINCIPLE OF NATURAL JUSTICE• STATUTORY PROVISION: If a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice. Then the court can not ignore the mandate of the legislature or the statutory authority.• LEGISLATIVE ACTS: Legislative acts are also not subject to the rules of natural justice. Thus before enacting law regarding imposing tax, fixing price etc. it is not necessary to issue notice and afford hearing.
NECESSITY: The doctrine of necessity applies not only judicial matters but also to quasi-judicial as well as administrative matters.• CONFIDENTIAL INQUIRIES: The observance of the principals of natural justice may be dispensed with where the inquiry is of confidential nature and disclosure of information may defeat the object of the statute.
• PREVENTIVE ACTION: Principles of natural justice may be excluded if its effects would vitiate the action sought to be taken or would defeat or paralyze the administration of the law.• EMERGENCY: In exceptional cases of urgency and emergency, where prompt and preventive action is required to be taken, the principles of natural justice need not to be compiled with.
EFFECTS OF NON OBSERVANCE OF PRINCIPLES OF NATURAL JUSTICE:In England, there are two views on this point.• in some cases the courts have taken the view that the non compliance of principles of natural justice would not vitiate the order and the order cannot be said void but merely voidable.
• In other cases the courts have taken the view that non- observance of the principles of natural justice renders the order null and void.It is clearly stated in the following case:INAM DIN V/S PROVINCE OF PUNJAB 1992 CLC 529 HELD: Where petitioners are condemned unheard while passing orders against their interest, such orders would be hit by principle of natural justice and the order is null and void, have no more any effect
LIMITS OF JUDICIAL REVIEW• 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 body‟s determination of facts except when its conclusion is not supported by any evidence at all.• Sufficiency of evidence cannot be reviewed
• Exceptional cases where evidence can be reviewed – Where no evidence is recorded till the final adjudication of case. – The recorded evidence was inadmissible before any court of law. – That the wrong evidence is recorded by the inferior court or by tribunals.
CONCLUSION• The exercise of governmental power by administrative authorities is a sacred trust and they are required to act within their limits and they are subject to judicial control in case of arbitrary exercise of their powers. This judicial review may be in the form of constitutional review i.e. , invoking the jurisdiction of High Court or non- constitutional review i.e. , invoking the jurisdiction of civil courts and no statute can curtail the judicial review of superior court.
CASEFACTS: 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.
HELD: John Marshall declared that although Marbury hadright to receive the commission but the Court could notissue the writ of mandamus. The Constitution is thesupreme law of the land. The authority given to theSupreme Court to issue writs of mandamus to publicofficers, appears not to be warranted by the Constitution;therefore, the court can not force Madison to deliver thecommissions.