THE DOCTRINE OF JUDICIAL REVIEW
By :
SYED MUHAMMAD NAJMUL SAQIB MUMTAZ
Advocate, LL.M. (Previous) (Part-1)
MEANINGS , DEFINITIONS OF
"JUDICIAL REVIEW":
1. According To
Black's Law Dictionary (Seventh Edition):
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.
3. A Judicial
Power in Action:
It is a doctrine according to which the Courts are
entitled, in the exercise of the "judicial power" of the State, to
examine and decide the question--
(a) of the Constitutional validity of any law, be it the result
of primary or subordinate legislation; and
(b) of the Constitutional validity or lawfulness of a decision,
action or inaction of a person or body in relation to the exercise of a public
function (1).
4. English Civil
Procedure (Amendment) Rules 2000:
In its Section 54.1, it is defined as:
A claim for judicial review means a claim to review the
lawfulness of:
(a) an enactment;
(b) a decision, action or failure to act in relation to the
exercise of a public function.
5. According To
Lord Bingham:
"It is the power of the Court to see that public
powers are lawfully exercised".
6. According To
Lord Lindley:
In Roberts Gwyfai Vs District Council, according to him:
"There is no duty of the Court which is more
important to observe and no power of the Court which is more important to
enforce than its power of keeping public bodies within their rights".
7. According To
Chief Justice Coke:
In Bonham's case in 1610, he maintained that:
"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".
IMPORTANCE:
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".
Marshall CJ said:
"No tribunal can approach such a question without a
deep sense of its importance and of the awful responsibility involved in its
decision" (2).
Whether or not it is right to describe the power of
judicial review as awesome, there seems to be no doubt that to see judicial
review in action is to witness the judicial power, and hence, the
administration of justice at its best.
POSTULATES OF 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 (3).
DIVINE ASPECT OF JUDICIAL REVIEW (JUDICIAL REVIEW IN
ISLAM):
For Muslims, judicial review is part of the Divine Law
(Holy Quran).
The Holy Quran ordains:
"O ye who believe, Obey Allah, and obey the
Messenger and those charged with authority among you. If you differ in anything
among yourselves, refer it To Allah and His Messenger, if you do believe in
Allah and the Last Day: That is best and most suitable for final
determination" (4).
HISTORICAL PERSPECTIVE (THE ESTABLISHMENT OF JUDICIAL
REVIEW):
So fundamental is the doctrine of Judicial Review of
legislation that a few brief remarks about its genesis and the circumstances in
which it arose to the position of its present power would not be out of place.
Justice Marshall's Contribution:
"If American law were to be represented by a single
figure, skeptic and worshipper alike would agree that figure could be one
alone, and that one, John Marshal. Marshal found the Constitution paper and he
made it power" (5).
True to the saying "cometh the hour, cometh the
man", came the appointment of John Marshall as the Chief Justice of the US
Supreme Court in 1801.
"He was so singularly fitted for the office of Chief
Justice and rendered such incomparable services in it, that the Americans have
been wont to regard him as a special gift of favouring Providence" (6).
His appointment proved the maxim attributed to Napoleon
that:
"The tools belong to the man who can use them".
But having said all that, we should be cognizant of the
fact that the doctrine of judicial review was in vogue much before Marbury Vs
Madison case.
The Doctrine Has Ancient Roots:
1. That the
doctrine of judicial review was not the invention of John Marshall is proved by
the fact that the classic tradition of juristic thought in which the lawyers
and judges of that time were steeped, owed much of its vitality and vogue to
the writings of Blackstone whose "Commentaries on the Laws of
England" had been reprinted five years before the Declaration of
Independence in America.
2. The origin of
the doctrine of judicial review has been traced back to the dictum of Sir
Edward Coke who is regarded as the greatest of the 17th century authorities on
the Common Law of England. He contended that Magna Charta had embodied certain
fundamental principles of rights and justice, and that the common law contained
a further expression of the same principles.
Dr. Bonham's Case (1610):
In this famous case, decided in 1610, Sir Edward Coke,
then Chief Justice of England, in an appeal, preferred by Dr. Bonham charged
for having violated the statute, adjudged the appellant to be "not
guilty" upon the ground that the law in question was void, his reasons
being:
"And it appears in our books, that in many cases,
the common law will control acts of Parliament, and sometimes adjudge them to
be utterly void; for 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".
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:
Primary Legislation is legislation made directly by the
legislature or the authority in whom the power to legislate for the time being
vests.
Subordinate Legislation:
It is a law made by an authority
acting under a power granted by a primary legislation.
BASIS AND RATIONALE OF JUDICIAL REVIEW OF LEGISLATION:
In
In England, Lord Coke would have liked it to be a
Constitutional rule that "when an Act of Parliament is against common
right and reason, or repugnant, or impossible to be performed, the common law
will control it, adjudge such Act to be void"; but that was not to be, and
there was no such thing as judicial review of Acts of Parliament.
The reason is that
In
Ever since the landmark case of Marbury vs
In
Marbury vs
In
In
1.
2. Fazlul Quader
Chaudhry vs Muhammad Abdul Haq (PLD 1963 SC 486);
3. Abul Ala
Maudoodi case (PLD 1964 SC 673); and
4. Sabir
Shah vs Shad Muhammad (PLD 1995 SC 66).
The Grounds of Challenge to Primary Legislation:
In the words of Chief Justice Marshall in Marbury vs
In
In
Judicial Review of Constitutional Amendments:
In
In the
In
Basic Structure Doctrine:
In
In Islamic
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:
General Scope:
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" (8).
Position in
"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" (9).
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's Concept:
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; Retrospectivity;
(f) Bad Faith or
Mala fides; and
(g) Unreasonableness.
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" (10).
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"
(11).
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
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
Introduction:
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
In
Courts in the
"The judicial Power of the
The Supreme Court:
The ultimate Court for deciding the Constitutionality of
federal or state law under the Constitution of the
MARBURY vs
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a
landmark case in United States law and the basis for the exercise of judicial
review in the United States, under Article Three of the United States Constitution.
Brief Facts of the Case:
The case resulted from a petition to the Supreme Court by
William Marbury, who had been appointed as Justice of the Peace in the
Decision:
The Supreme Court denied Marbury's petition, holding that
the statute upon which he based his claim was unconstitutional.
MCCULLOH VS MARYLAND 17 vs (4 Wheat) 316:
In this case, the doctrine of judicial review was
reinforced and applied to "the supremacy of the Federation over
States".
3. Judicial
Review in Pre-Partition
In pre-independence
4. Judicial
Review in
The Courts in
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
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:
In the
In the
If a state statute conflicts with a valid federal
statute, then Courts may strike down the state statute as a violation of the
Supremacy Clause. But a federal Court may not strike down a statute absent a
violation of Federal law or of the federal Constitution.
Nevertheless, the federal Courts have not departed from
the principle that Courts may only strike down statutes for
unconstitutionality.
PROCEDURE IN JUDICIAL REVIEW PROCEEDINGS:
Procedure Including Evidence:
Because judicial review proceedings are in the nature of
summary proceedings, matters involving a conflict of fact and a conflict of
evidence which would require investigation and would involve discovery and
cross-examination are considered unsuitable for disposal on an application for
judicial review.
Procedure Including Evidence:
Article 199 doesn't prescribe any period of limitation
for applications under this Article. The Limitation Act 1908 also doesn't apply
to the proceedings under Article 199.
JURISDICTIONAL REQUIREMENTS IN
In the Constitution of the
1. The Rule
against Advisory Opinions:
It means, against extra-judicially deciding a question.
The earliest instances of cases in which this rule was
propounded are Hayburn's case of 1792 and Muskrat vs US (219
2. Mootness:
The Courts cannot decide moot questions; they can only
decide actual cases and controversies.
3. Ripeness,
Prematurity and Abstractness:
Until the controversy has become concrete and focused, it
is difficult for the Court to evaluate the practical merits of the position of
each party.
The leading case on ripeness is United Public Workers Vs
Mitchell (330
4. Standing:
In Allen vs Wright (468
The leading cases in this matter are Fothingham vs Mellon
(262
THRESHOLD QUESTIONS:
1. Other Adequate
Remedy:
In
In
In
"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" (13).
2. Doctrine of
Locus Standi:
In
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
Recent cases show that the Courts in
Doctrine of Standing in
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
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, (14) and
(b) Ardeshir
Cowasjee vs Karachi Building Control Corporation, (15)
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".
3. 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.
4. Fairness:
"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" (16).
5. 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.
6. 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.
7. 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".
8. 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.
9. 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.
10. Unreasonableness:
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".
11. Mala-fides:
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.
12. 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.
13. 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".
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
The Earliest Opposition:
The earliest opposition came from no less a person than
Thomas Jefferson, who was President of America at the time of the decision of
Marbury vs
"You seem to think it developed on the judges to
decide on the validity of the sedition law. But nothing in the Constitution has
given them a right to decide for the Executive, more than the Executive to
decide for them. The instrument (the Constitution) meant that its co-ordinate
branches should be checks on each other. But the opinion which gives to the
judges the right to decide what laws are Constitutional, and what not, not only
for themselves in their spheres of action, but for the legislature and
executive, in their own spheres, would make the judiciary a despotic branch".
Position in
This is precisely the position in
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
Thus, as has been noticed by Lord Woolf, in the English
Judicial History, one of the periods of such tension was when there was a
Labour Government and Lord Denning was the Master of the Rolls.
In
In
In
In
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" (18).
PROS AND CONS
Although judicial review has become an established part
of Constitutional law in the
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. •
HOW SUPREMACY OF SOME CONSTITUTIONS IS SECURED THROUGH
MEANS OTHER THAN THAT OF "JUDICIAL REVIEW":
It becomes necessary in the context to notice how in
countries where the doctrine of judicial review doesn't apply, the supremacy of
the written Constitution is maintained.
1. Swiss Example:
In
2. French
Example:
In the Constitution of the fourth
Conclusion:
The cases of Swiss and French Constitutions have been
referred in an attempt to show that the procedure of judicial review is not the
only device of conserving the supremacy of a written Constitution.
REFERENCES
1. Judicial
Review of Public Actions by Justice (R) Fazal Karim.
2. McCulloh Vs
3. FUNDAMENTAL
LAW of
4. In Sura 4:59
5. Oliver Wendell
Homes, himself a great and celebrated judge.
6. James Bryce in
his book, "The American Common Wealth":
7. AIR 1973 SC
1461
8. Diplock
LJ in IRC vs National Federation of Self-Employed (1981) 2 All ER 93.
9. Chief
Justice Munir in Tariq Transport Company Case (PLD 1958 SC 437).
10. Fauji
Foundation Vs Shamim-ur-Rehman (PLD 1983 SC 457):
11. Christopher
Wolfe in his book "The Rise of Modern Judicial Review".
12. Article III of
13. Muhammad Arif
vs Income Tax Officer (PLD 1989 SC 109):
14. PLD 1988 SC
416
15. 1999 SCMR
2883.
16. Airport
Support Service vs Airport Manager (1998 SCMR 2268):
17. Masroor
Ahsan vs Ardeshir Cowasjee (PLD 1998 SC 823).
18. Holmes J in
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. Note: He can
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