|Grounds for Judicial Review
According to this dictionary, it is:
(a) The Court’s power to review the actions of other branches or levels of government; especially the Court’s power to invalidate legislative and executive actions as being unconstitutional;
(b) The Court’s review of a lower Court’s or an administrative body’s factual or legal findings. “When an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge, such Act to be void”.
The power of judicial review, or the authority to declare legislative enactments void, it was said by Justice Iredell in 1878, is:
“Of a delicate and awful nature”.
The Doctrine of Judicial Review:
The doctrine of judicial review pre-supposes the truth of the following propositions:
(a) Constitution is a law which is enforceable by Courts.
(b) It is a law of higher obligation than the ordinary law.
(c) In the event of conflict between Constitution and ordinary law, it is for the Courts to declare the ordinary law, on the ground of its repugnance to higher law, as void
Scope of Judicial Review:
As has been defined, judicial review can question the validity of:
legislation (primary or subordinate), and administrative actions.
1. Judicial Review of Primary Legislation:
Primary Legislation is legislation made directly by the legislature or the authority in whom the power to legislate for the time being vests.
It is a law made by an authority acting under a power granted by a primary legislation.
The Grounds of Challenge to Primary Legislation:
“It is the theory of a written Constitution that an Act of the legislature, repugnant to the Constitution, is void”.
In Pakistan, as in India, we have a written Constitution and the Constitution is the supreme law of the land. We have adopted the English Parliamentary system but not the English doctrine of the absolute supremacy of Parliament in matters of legislation. In this respect, we have followed the American Constitution and the systems modeled on it.
Judicial Review of Constitutional Amendments:
Islamic Republic of Pakistan:
Although the Courts in Pakistan have not recognized the Basic Structure Doctrine, the Courts in Pakistan consistently held (In Abdul Wali Khan case “PLD 1976 SC 57″ and in Pakistan Lawyers Forum vs Federation of Pakistan “PLD 2005 SC 719″) that a Constitutional Amendment can only be challenged if it has been enacted in a manner not stipulated by the Constitution itself.
2. Judicial Review of Administrative Actions:
In the exercise of its judicial review jurisdiction, the High Court is concerned only with the lawfulness of what the public officers do.
“The public officers are accountable to Parliament for what they do so far as regards efficiency and policy and of that Parliament is the only judge; they are responsible to a Court of justice for lawfulness of what they do and of that the Court is the only judge”.
Position in Pakistan:
“Where an administrative executive officer acts under a law, the High Court will control the action by an appropriate order if he:
- goes out of law, i.e. exercises a jurisdiction not vested in him by law;
- wrongly denies or omits to exercise a jurisdiction; and
- where the law under which he acts prescribes the manner in which he is to act materially departs from that law”.
Justification for Treating Subordinate Legislation with Administrative Actions:
The justification for treating the subject of subordinate legislation along with administrative actions in general is that subordinate legislation is merely one form of administrative action and both, in American and British systems, judicial review of subordinate legislation is subject to normal law governing review of administrative action.
Doctrine of Ultra Vires:
It’s Meanings: Ultra Vires is a Latin word which means; “Beyond Power”.
It is axiomatic that a public authority which derives its existence and its powers from statute cannot validly act outside those powers.
The doctrine of Ultra Vires covers all the defects which may lead to administrative actions – subordinate legislation included being invalidated in the Courts.
Grounds for Ultra Vires:
(a) Contravention of the Constitution;
(b) Inconsistency with or Contravention of the Enabling Statute;
(c) Affecting jurisdiction of Courts;
(d) Contravention of a Law other than the Enabling Enactment;
(e) Affecting Vested Rights; Retrospectively;
(f) Bad Faith or Mala fides; and
Relationship Between Judicial Power, Jurisdiction And Judicial Review:
“Before a Court can claim to exercise judicial power, it must have jurisdiction; for jurisdiction is the authority of a Court to hear a case and hence to exercise judicial power”.
Theory of Jurisdiction and Judicial Review:
It is well to bear in mind that Judicial Review has grown out of the theory of jurisdiction and traditionally judges in America, England and other common law countries have for centuries been accustomed to using the expressions “jurisdiction”, “without jurisdiction”, “within jurisdiction”, “excess of jurisdiction” in the exercise of their power of judicial review.
Interpretation and Its Relation With Judicial Review:
Judicial power is the power to decide and that includes the power to interpret. The core function of a judge is to decide by applying the law to the facts of the case before him. That necessarily involves interpretation of the law in order that it may be so applied.
“Interpretation is at the heart of judicial review; and judicial review, so to say, is essentially a matter of interpretation”.
Nexus Between Judicial Review And Fundamental Rights:
In countries with written Constitutions, fundamental rights form part of the written Constitution and any law or executive action which is inconsistent with fundamental rights, will come under judicial review.
Effect of Violation of Fundamental Rights
Ever since that land mark case of Marbury Vs Madison in which the power to pass upon the Constitutional validity of legislative acts was first asserted, it has been a firmly rooted principle that a written Constitution is the fundamental and paramount law of the nation “and consequently, the theory of every such government must be such that an act of Legislature, repugnant to the Constitution is void”.
It makes, like Article 13, clauses (1) and (2) of the Indian Constitution, provisions expressly declaring laws inconsistent with or in contravention of the Fundamental Rights, which are part of the written Constitution, to be void.
Article 8 of Constitution of Islamic Republic of Pakistan, 1973:
It says in its clauses (1) and (2):
(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this chapter (of Fundamental rights), shall to the extent of such inconsistency, be void;
(2) That State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such inconsistency, be void.
Judicial Review As Developed In Different Countries:
Here we will observe the status of judicial review in different countries.
1. Judicial Review in Great Britain:
Judicial review is a procedure in English Administrative Law by which English Courts supervise the exercise of public power.
Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in a few cases where primary legislation is contrary to EU law and the European Convention of Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case.
2. Judicial Review in United States of America:
In America, there is a written Constitution, and judicial review is the doctrine according to which Courts are entitled to rule upon the Constitutionality of an action taken by a co-ordinate branch of government. Thus there, judicial review extends to legislative enactments also.
Courts in the United States have the power of judicial review. This power is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution.
3. Judicial Review in Pre-Partition India:
In pre-independence India, only three High Courts at the Presidency towns of Calcutta, Madras and Bombay had the power to issue the prerogative writs. By the charters of the three Supreme Courts created in pursuance of the Regulation Act of 1773, those Supreme Courts were vested with the powers of the Court of King’s Bench which included the power to issue the prerogative writs.
4. Judicial Review in India:
The Courts in India exercise the power of judicial review by virtue of this power being conferred on them by Articles 32 and 226 of the Indian Constitution.
Judicial Review Is A Part Of Basic Structure Of The Indian Constitution:
The Supreme Court of India has held in a host of cases that:
“The doctrine of judicial review is the power inherent and intrinsic in the Supreme Court and High Courts of India, and even a Constitutional amendment cannot divest these Courts of their power of judicial review”.
5. Judicial Review in Islamic Republic Of Pakistan:
The Supreme Court and High Courts of Pakistan exercise the power of judicial review by virtue of powers conferred upon them Articles 184(3) and 199 respectively of the Constitution of Islamic Republic Of Pakistan, 1973.
Standard of Review:
“Under Article 199 of the 1973 Constitution, the jurisdiction of the High Court is subject to the condition that the High Court is satisfied that no other remedy is provided by law”.
Doctrine of Locus Standi:
Under the English Legal System, “the Courts as the judicial arm of government do not act on their own initiative”. The Courts in England, in exercising the power to grant prerogative writs, have always reserved the right to be satisfied that the applicant has some genuine locus standi to appear before it.
Public Interest Litigation in England:
Recent cases show that the Courts in England have shown “an expansionist view towards locus standi in respect of public interest challenges”.
Doctrine of Standing in America:
There is no specific provision in American Constitution corresponding to Article 199 of the Constitution of Pakistan requiring that there must be an application by an aggrieved person or aggrieved party. The “Doctrine of Standing” is one of the doctrines which cluster about Article III of the American Constitution which confines the federal Courts to adjudicating actual cases and controversies and is perhaps the most important of the jurisdictional doctrines.
Doctrine of Standing in Pakistan:
The words “on the application of any aggrieved party”, “on the application of any aggrieved person” as they occur in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are clearly redolent of the presence of the doctrine of Locus Standi in Pakistan.
Public Interest Litigation and Locus Standi:
In the cases of
(a) Benazir Bhutto vs Federation of Pakistan, and
(b) Ardeshir Cowasjee vs Karachi Building Control Corporation,
It has been observed that the concept of locus standi has undergone material change in case of public interest litigation; and, indeed, there is a greater need to allow liberal cases “under a generous conception of locus standi”.
1. Territorial Jurisdiction:
“Territorial jurisdiction is the power of a Court or Tribunal considered with reference to the territory within which it is to be exercised. It means the geographical limits within which the judgments and orders of a Court can be enforced and executed. The object of defining the territorial limits of the Courts and Tribunals generally is to avoid a clashing of jurisdiction”.
Under Article 199 of our Constitution, the jurisdiction of the High Courts is territorial.
“Public authority must, in the performance of their public law functions, act fairly and justly, is a universal rule vouched by high and respectable judicial authority”.
3. Natural Justice:
Natural justice, it has been said, is only “fair play in action”.
For our purpose, it is sufficient to say that natural justice consists of the rule against bias and the right to be heard.
4. The Right to Be Heard:
This right may be founded upon a statute or a statutory instrument or it may rest upon the maxim “Audi Alteram Partem”.
It is one of the principles of justice that no man should be condemned without being heard.
5. The Rule against Bias:
“The rule against bias” is the second pillar supporting natural justice. It is commonly captured in the phrase “nemo judex in sua causa”, which means that “nobody may be judge in his own cause”.
6. Duty to Give Reasons:
Natural Justice demands that:
(a) the applicant be informed of the nature of the case against him; and
(b) he should be given a reasonable opportunity to be heard.
It is well established rule that if opportunity to be heard is to have any value in practice, the decision maker must assign or .identify the reasons for any adverse decision.
7. Duty to Communicate the Adverse Order:
Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the Courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.
In Government of Pakistan vs Dada Ameer Haider Khan (PLD 1987 SC 504), the respondent was refused a passport, and the reasons given by the government before the High Court were that the respondent was on old political worker having “communist thoughts”. In upholding the decision of the High Court, the Supreme Court observed:
“We don’t think that this reason was a reasonable ground on which a citizen’s liberty to travel abroad could be curtailed”.
The Supreme Court and the High Courts in their judicial review jurisdiction can always pronounce an act to be mala fide and therefore void, and their jurisdiction to do so cannot be taken away.
10. Judicial Review in National Security and Emergency Matters:
In such a situation, the Court must observe the limits dictated by law and common sense, but at they same time, the Courts don’t abdicate their judicial function.
11. Question of Fact:
In the exercise of their judicial review jurisdiction, the Courts are concerned with the lawfulness of the actions of public authorities; they are primarily concerned with the “questions of law” and they give scant regard to “questions of fact”.
12. Judicial Review and National Supremacy:
Even many persons who have criticized the concept of judicial review of congressional acts by the federal Courts have thought that review of state acts under federal Constitutional standards is soundly based in the supremacy clause, which makes the Constitution and Constitutional laws and treaties the supreme law of the land.
Is Judicial Review Undemocratic?
Ever since the decision in Marbury vs Madison, there has been a lively debate as to the legitimacy of the power of judicial review.
Position in Pakistan:
This is precisely the position in Pakistan. They are the judicial organ of the State and are so recognized by a written Constitution, namely the Constitution of the Islamic Republic of Pakistan. The system of government under that Constitution is democracy and the Courts are therefore an integral part of that democratic system.
Tensions Arising From Judicial Review:
Tension Is Inevitable:
It is natural and inevitable that tensions and frictions will arise from decisions in the applications for judicial review and judges will have their critics. The reasons are not far to seek. They are, among others, that it is in the nature of those exercising political authority to be overweening in its exercise and secondly, judges are the bulwarks of liberty and it is the requirement of their judicial function that they treat the executive on the same footing as any other litigant.
In Pakistan, the tension, once in the year 1997 rose so high that a three judge Bench of the Supreme Court suspended the operation of a Constitutional Amendment i.e. 14th Amendment; in another matter, a Bench directed the President not to assent to a Bill, which had been duly passed by the National Assembly and the Senate. There were speeches in and out of the National Assembly in respect of the Judges, which gave rise to contempt proceedings (17) culminating in the national humiliation of having the Supreme Court of Pakistan physically attacked during the hearing of the contempt matter against the then Prime Minister and others.
Moderate Judicial Review:
Judicial review won out in early American history after genuine struggles, but the form it won was critical to its success. In a different form, it is likely that it would not have survived. The form it took was “Moderate Judicial Review”.
“Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts”
Pros and Cons
Although judicial review has become an established part of Constitutional law in the United States, some people disagree with the doctrine, or believe that it is unconstitutional since it is not specifically spelled out in the Constitution.
Proponents of judicial review note that any government based on a written Constitution requires some mechanism to prevent laws from being passed that violate that Constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government.