JUDICIAL REVIEWCOURTS 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. Section 152 of CPC, 1908. 5 Article 173 of the Limitation Act. 6 Article 188 of the Limitation Act will apply. 4 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 socioeconomic 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. 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. 10 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) 2) 3) 4) 5) 6) Reasonableness Improper motives/ malafide Irrelevant considerations Acting under dictation Abdication of authority 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. ii. 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. 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. ii. iii. Laches or unreasonable delay Alternative remedy 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. b. c. d. e. Habeas corpus Mandamus Prohibition Certiorari 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 effect 18 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. ii. iii. 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. 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).