JUDICIAL REVIEW

COURTS IN PAKISTAN

Under Article 175 of The Constitution of Pakistan, 1973, there is Supreme Court of

Pakistan, the High Courts and such other courts, as may be established by law. Now the

rule of law in Pakistan is well established. The obligations of the Courts in Pakistan are,

therefore, exclusively and directly to the law and the Constitution, and by large they have

always conducted themselves accordingly.

JUDICIAL REVIEW

Legal System of Pakistan presents two types of judicial review, which are valid as well as

constitutional according to the prescribed statutes enforced in Pakistan.

All courts which are established in Pakistan have general power to review its orders,

judgment and decree.1 This kind of review can be called as review of judicial actions.

The power of the judiciary to control administrative actions derive their force from the

law and the Constitution. 2 This kind of review can be called as review of administrative

and legislative actions.

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.

JUDICIAL REVIEW OF JUDICIAL ACTIONS

No court has power to review without application by the aggrieved party except the

Supreme Court. Supreme Court has power to review suo motu.

JUDICIAL REVIEW OF CIVIL ACTIONS

All courts have power to review their own civil actions under Section 114 of CPC, 1908,

subject to the procedure, conditions and limitations prescribed by the rules of order 47.

1 Section 114 of CPC,1908. Section 561-A of Cr.P.C., 1898. Article 188 of The Constitution of Pakistan,

1973. 2 Article 199 of The Constitution of Pakistan, 1973.

1) Any person may apply to the court which passed the decree to review, who

considers himself aggrieved(whose right has been effected whether he is party to

suit or not) by;

a. A decree or order from which an appeal is allowed by this Code but from

which no appeal has been preferred.

b. A decree or order from which no appeal is allowed by this Code.

c. A decision on a reference from a Court of Small Causes.

2) Sub-section 1 shall not apply to a review of any judgment pronounced or order

made by the Supreme Court.

Any party can apply as a matter of right under this section.

Court can review its own decision as its inherent power to prevent abuse of the process of

the court and as if necessary for the ends of justice.3

Court has power in civil actions to review judgment, order or decree to correct clerical or

arithmetical mistakes which are arising accidently either on the application of parties or

of its own motion.4

No party can claim as a matter of right under section-152. The matter is in the discretion

of court to be exercised in view of the peculiar facts of each case.

An application for review is allowed within 90 days from the day of pronouncement of

judgment.5

Where an application for review is time barred, recourse can be had to powers under

section 151.6

JUDICIAL REVIEW OF CRIMINAL ACTIONS

S. 561-A of Cr.P.C., Review of Inherent power of High Court.

Principle

No provision is available for review of any judgment or order under Criminal Procedure

Code, 1898, yet while exercising inherent jurisdiction under S.561-A , Cr.P.C . High

Court has ample power to correct its own orders or to recall an erroneous order---

Criminal court can only review or recall its judgment and order, if it is satisfied that

3 Section 151 of CPC, 1908. 4 Section 152 of CPC, 1908. 5 Article 173 of the Limitation Act. 6 Article 188 of the Limitation Act will apply.

earlier order/ judgment is either without jurisdiction or against mandatory provisions of

law and has been delivered inadvertently and out of oblivion of the provision of law and

if such order / judgment is left intact, it would result in perpetration of manifest injustice.7

JUDICIAL REVIEW BY SUPREME COURT

The Supreme Court has power to review any judgment pronounced or order made by it.8

JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

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.

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 dictatorship, political influences

and arbitrariness etc. so this makes up the historical rationale for judicial review.

PRACTICE AND CONCEPT

The concept of judicial review has developed in countries like England, US, and also

Pakistan and India.

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.

7 2013 PCrLJ 518 QUETTA-HIGH-COURT-BALOCHISTAN, AFTAB IQBAL KHILJI vs. STATE. 8 Artice-188 of THE CONSTITUTION OF PAKISTAN, 1973.

POWER OF JUDICIAL REVIEW UNDER ARTICLE 199 OF THE CONSTITUTION OF

PAKISTAN, 1973

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;

iii. 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 JURISDICTIONAL PRINCIPLES /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".9

SCOPE

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".10

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.11

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

9 http://en.wikipedia.org/wiki/Ultra_vires, 20th April, 2014. 10 http://www.scribd.com/doc/38708208/Admn-Law-Intro, 20th April, 2014. 11 Judicial Review and the Constitution, Christopher Forsyth, Hart Publishing, 01-Jan-2000.

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.

PRINCIPLES APPLIED IN PAKISTAN

Jurisdiction principles 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

1. 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.

2. 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.

3. IRRELEVANT CONSIDERATIONS

It is an established principle that in exercising discretion, the authorities must have regard

to all relevant considerations and disregard all irrelevant considerations.

4. ACTING UNDER DICTATION

Discretionary powers must be exercised only by the persons authorized by the statute.

One of the rules to ensure this policy is that the persons so authorized must not act under

dictation.

5. ABDICATION OF AUTHORITY

Persons invested with discretion must exercise it properly and are not allowed to

‘surrender their power’ to any other authority.

6. SUBJECTIVE DISCRETION

Exercise of subjective discretion by authority allowed under an enactment has been

brought under judicial review.

Expressions such as "shall make such orders as it may think fit" do not allow to make a

fanciful or arbitrary order unrelated to the case before it.

MODES OF JUDICIAL REVIEW

Following are the modes of judicial review of administrative action

i. Public Law Review

ii. 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.

CONSTITUTIONALITY OF PUBLIC LAW REVIEW

The Supreme Court and High Court have power to issue writs in the nature of habeas

corpus, prohibition, mandamus, certiorari, prohibition and quo warrants.12

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

i. Laches or unreasonable delay

ii. Alternative remedy

iii. Res Judicata

LACHES OR UNREASONABLE DELAY

Through writ issuing power of Supreme Court and the High Court is mandatory, however

the court may refuse remedy if there is unreasonable delay in invoking the jurisdiction of

the court. Unlike limitation there is no fixed period for laches. Every case will be

determined on its own merits.

ALTERNATIVE REMEDY

The Supreme Court or High Court cannot issue writ if alternative remedy is available.

Exception: if the person complaints of violation of fundamental rights the Supreme Court

and High Court cannot refuse relief U/A 184(3) and 199 on the ground of alternative

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 REVIEW

Following are the different kinds of writs which can be issued on certain grounds by

Supreme Court and High Court

12 Under the provision of article 184 (3) and 199 of The Constitution of Pakistan,1973.

a. Habeas corpus

b. Mandamus

c. Prohibition

d. Certiorari

e. Quo warranto13

MANDAMUS to do anything he is required by law.

HABEAS CORPUS 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.

PROHIBITION 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.

CERTIORARI 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.

QUO WARRANTO requiring a person within the territorial jurisdiction of the Court 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:

a. Injunctions

b. Declaratory actions

c. 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.

13 Under the provision of article 184 (3) and 199 of The Constitution of Pakistan,1973.

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

Natural justice is also known as "substantial justice", "fundamental justice" and

"universal justice". The principles 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.

The English Law recognizes the two principles of natural justice: that “an adjudicator be

disinterested and unbiased” and that “Parties be given adequate notice and opportunity to

be heard”.14

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”

14 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS, Muhammad Bashir Jehangiri, Former Chief Justice of Pakistan.

This rule was perhaps first enunciated in R.V. Chancellor of University of Cambridge

(1723).15

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 pecuniary interest in the subject matter of the

litigation will disqualify any person from acting as a judge.

15 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS, Muhammad Bashir Jehangiri, Former Chief Justice of Pakistan.

PERSONAL BIAS

Personal bias arises from a certain relationship equation between the deciding authority

and the parties. Here a judge may be a relative, friend or business associate of a party. He

may have some personal grudge, annuity or grievance or professional rivalry against him.

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.

Bias is said to be of three different kinds:

a) A Judge may have a bias in the subject-matter which means that he is himself a

party or has direct connection with the litigation, so as to constitute a legal

interest.

A legal interest' means that the Judge is 'in such a position that a bias

must be assumed'.

b) Pecuniary interest in the cause, however, slight, will disqualify the Judge, even

though it is not proved that the decision has in fact been affected by reason of

such interest. For this reason, where a person having such interest sits as one of

the Judges the decision is vitiated.

c) A Judge may have a personal bias towards a party owing to relationship and the

like or he may be personally hostile to a party as a result of events happening

either before or during the trial. Whenever there is any allegation of personal bias,

the question which should be satisfied is - "Is there in the mind of the litigant a

reasonable apprehension that he would not get a fair trial?" The test is whether

there is a 'real likelihood of prejudice, but it does not require certainty.' 'Real

likelihood' is the apprehension of a reasonable man apprised of the facts and not

the suspicion of fools or 'capricious persons'.16

16 Ali Zardari v. The State (PLD 2001 SC 568).

AUDI ALTERAM PARTEM

“Audi Alteram partem” is the basic principle of 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.17

ELEMENTS OF MAXIM

This maxim includes two elements;

Notice

Hearing

1. 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.

17 http://www.lawnotes.in/Principles_of_Natural_Justice, 20th April, 2014.

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

2. 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 OFNATURAL JUSTICE

1. 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 cannot ignore the

mandate of the legislature or the statutory authority.

2. 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.

3. NECESSITY

The doctrine of necessity applies not only judicial matters but also to quasi-judicial as

well as administrative matters.

4. 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.

5. 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.

6. 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:

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 effect18

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.

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.

18 INAM DIN V/S PROVINCE OF PUNJAB (1992 CLC 529).

Sufficiency of evidence cannot be reviewed.

EXCEPTIONAL CASES WHERE EVIDENCE CAN BE REVIEWED

i. Where no evidence is recorded till the final adjudication of case.

ii. The recorded evidence was inadmissible before any court of law.

iii. 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.

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.

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 cannot force Madison to deliver the commissions.19

********************

19 MARBURY V. MADISON (1803).