JUDICIAL REVIEWOF

PUBLIC ACTIONSA treatise on Judicial Review, with sotne itnportant backgroundtopics such as concept of jurisdiction, constitutional concept of

Judicial Power, Legislative Power and Executive Power.

Volume 2

by

Justice (R) Fazal KarimFormer Judge, Supreme Court of Pakistan.

universalLaw Publishing Co.

Contents

Preface viiTable of Cases xxv

PART IXCONSTITUTIONAL POWER OF JUDICIAL REVIEW

SECTION-ASOME PRELIMINARY TOPICS

CHAPTER l

HlSTORICAL BACKGROUND 915

Judicial Review in Islam 915In Britain 915In America 918Judicial Review in Pre-Partition India 918

Judicial Review by Civil Courts 919The Context of Privy Council's Observations in Mask & Co. 922Section 223-A of the Government of India Act, 1935 923Articles 22 and 170 of 1956 Constitution 923

Constitutions of Pakistan Since 1962 924

CHAPTER 2

DLSTINCTION BETWEEN APPEAL AND JUDICIAL REVIEW 925

Essenceof Appellate Jurisdiction 925Essence of Judicial Review Jurisdiction 925But Appellate Forums may decide Vires Questions? 926

CHAPTER 3

HAS ARTICLE 199 AFFECTED THE CLVIL COURTS' POWER 927

Does the Civil Courts Jurisdiction Stand Excluded? 928Public and Private Right 929Suit is Barred where Matter had been Decided in Judicial Review 930

xii ]udicial Review of Public Actions

SECTION - BPOWER OF JUDICIAL REVIEW UNDER ARTICLE 199

CHAPTER l

THE PROVISIONS AND THE CHANGE THEY REFLECT 932

The Text 932Extent of Change 933Power of Judicial Review is no more an Inherent Power 936The Power no more grows with the foot of the Chancellor 937

CHAPTER 2

PROCEDURE IN JUDICIAL REVIEW PROCEEDINGS 938

Procedure including Evidence and Limitation 938Whether the matter under Judicial Review is Civil or Criminal 940Adjusting the Remedies in the Granting of Reliefs 941

Relief in the light of Subsequent Events 942To Hear a Third Party 942Consequential Orders 943

CHAPTER 3

SUBJECT TO THE CONSTTTUTION 945

Meaning of "Subject to the Constitution" 945Effect of Jurisdiction-ousting clauses in the Constitution 946

Article 212 of the Constitution 947Matters in the exclusive Jurisdiction of Service Tribunal 948Cases to which Jurisdiction of Service Tribunal does not extend 949Article 225 of the Constitution 950The Principle as Regards Ouster 952

Some other Ouster Clauses 953Ouster Clauses to Save Actions taken under Military Rule 954

Purported to be Done 955The Principle 957

CHAPTER 4THRESHOLD QUESTIONS 958

Jurisdictional Requirements in US 958(l) OTHER ADEQUATE REMEDY 959

Position Before 1962 Constitution 959Position under Article 199 of 1973 Constitution 960The Condition of "Other Adequate Remedy" Applies to all the Reliefs

under Article 199 962Object of the Condition of Adequate Remedy 962Meaning of "Other Adequate Remedy" 963

Contents xiii

Pendency of Suit, its Effect 964Appeal as an Alternate Adequate Remedy 964Cases in which other Remedies are not Adequate 965Cases in which Appeal or Revision Lies to the High Court or

Supreme Court 966In Mutation Cases 967Arbitration as Alternate Remedy 967The High Court not to go into the Merits if there is Another

Adequate Remedy 967(2) DOCTRINE OF LOCUS STANDI 968

In England 968Public Interest Litigation in England 969

Doctrine of Standing in America 970Under Article 199 of the Constitution: "Aggrieved Person";

"Aggrieved Party" 973No suo motu Power 973

Does the suo motu Principle Extend to cases in which a Relief is notExpressly Claimed 974

Distinction between "Aggrieved Party" and "Aggrieved Person" 977Terson', 'Party' 977By an Association 978By Prisoners 979By Alien Enemies 979A Generalized Interest, Common with others, is not enough 979Locus Standi is a Question for Decision, not of Discretion 980Object of this Provision 980Not always a Threshold Question 980The test is different for Different Reliefs 981'Aggrieved' - Its Connotation 981When the Case is not Ripe or is Pre-Mature 983

Tax-payers' Right to Enforce Tax Liability of others 983Mutation Cases 985

Public Interest Litigation and Locus Standi 985(3)'TERRITORIAL JURISDICTION" 988

Historical Background 988Jurisdiction under Article 199 is a New Jurisdiction 990Objection as to Territorial Jurisdiction must be made at the Earliest 991Cases under sub-clause (a)(i)(ii) 991Cases under Sub-clause (b)(i) of Clause (1) of Art. 199 998Cases under sub-clause (b)(ii) of clause (1) 1000Cases under clause (c) of clause (1) 1000Benches of the High Court and their Territorial Jurisdiction 1001

xiv Judicial Review of Public Actions

CHAPTER 5

PERSONS AND BODIES SUBJECT T O JUDICIAL REVIEW 1002

In Britain 1002"Public Authority" under The Human Rights Act, 1998 1005

In America 1007State Action; Public Functions 1008

For the Purpose of Article 199, clause (1), sub-clauses (a)(i)(ii) 1010Judicial Review is a Public Law Remedy 1010

Performing Functions in Connection with the Affairs of Federation etc. 1010Meaning of "Person" 1012Body Politic or Corporate 1013

Legislature, is it a Person 1014When the Action is taken by Federal or Provincial Government 1014

Any Authority of or under the Control of the Federal Government or of aProvincial Government 1014

Any Court or Tribunal 1015Supreme Court and High Courts—Their amendability to Judicial Review 1016Courts and its Judges 1017How to Avoid this Ludicrous Position 1022Can a Judicial Order Contravene a Fundamental Right 1024Other Illustrative Cases Regarding Courts as Persons 1024When the Supreme Court or the High Court Exercises Administrative or

Rule Making Powers 1025Administrative Powers of Chief Justice under Law or Rules of Court 1028

The Position Summed up 1030Functions 1031Affairs 1032Federation, Province, Local Authority 1032Immunity given by Article 248 1033Direction to Cabinet when it cannot Issue against President etc. 1036Meaning of "Performing Functions in Connection with . . . " 1036Position of Statutory and Non-Statutory Corporations and Agencies 1037'Alter ego'; Tearing the Veil of Corporation 1039

Contracting Out Public Services or Utilities 1041The Position under Article 199 1043Domestic Tribunals 1043Position Summed up, with Comments 1045

CHAPTER 6Is THE REMEDY A MATTER OF RIGHT OR DISCRETION 1046

In Britain 1046Significance of 'May7 1048

Contents xv

'May' in Article 199 1049Power Coupled with a Duty 1049Power under Article 199 is Treated as Discretionary 1050Stage for the Use of Discretion under Article 199 1051Meaning of 'Discretion' 1051Judicial Discretion - Its Meaning 1051Grounds on which Relief may be Withheld 1054

(1) Conduct of Applicant 1054(2) "Circumstances of the Case" 1057(3) Justiciability 1060(4) When the Relief will beFutile 1063(5) Ripeness 1063(6) When the Controversy no more Exists 1063

Constitutional Rights and Courts' Discretion to Enforce or not toEnforce them 1063

When Judicial Discretion Requires Judicial Statesmanship 1065

CHAPTER 7CLAUSE (l) SUB-CLAUSE (a) 1071

Preliminary 1071CLAUSE (1) SUB-CLAUSE (a)(i): PROHIBITION AND MANDAMUS 1071

'Law7, Its Meaning 1073Direction to Pay Emoluments of Public Servants 1073

Improper or Capricious Exercise of Discretion 1073Restoring Directors of Public Companies to Office 1074

Direction to Legislature 1074Direction to Legislate or not to Legislate 1074Direction to Executive to take Legislative Measures 1076Direction to Legislature other than Direction to Legislate 1077Direction to the Executive or Administrative Authorities 1078Directions to Police 1078

Refund of Money Illegally Recovered: Restitution 1078Subject to Law of Limitation 1079When the Tax-Payer Passed on the Bürden 1081

Limitation Act 1908 does not Apply to Proceedings under Article 199 1081Directions in Matters Purely Political, e.g. War, Emergency 1081Direction to Revoke a Proclamation of Emergency 1082When there is Failure to Perform Legal Duty within a Stated or

ReasonableTime 1083Direction to Enforce an Act by Fixing Commencement Date 1083Direction to make Subordinate Legislation, e.g. Rules, Regulations 1086Direction to Enforce a Declaratory Decree 1086

xvi Judicial Review of Public Actions

CLAUSE (1) SUB-CLAUSE (a)(H): CERTIORARI 1086Preliminary 1086Distinction between sub-clauses (a)(i) and (a)(ii) 1087Without Lawful Authority 1087Lawful 1088Why has the Expression "Without Lawful Authority" instead of "Without

Jurisdiction" been used 1089Meaning of "Of No Legal Effect" 1089Meaning of "Without Lawful Authority and Of No Legal Effect" as

One Expression 1090Regard to be had to the Relevant Law to Determine Lawfulness 1091"Law", Its Meanings 1091

CHAPTER 8

CLAUSE (l) SUB-CLAUSE (b) 1092

Distinction between sub-clause (a) and sub-clause (b) 1092Applicant need not be an Aggrieved Person 1092Other Conditions 1092

SUB-CLAUSE (b)(i): HABEAS CORPUS 1093Liberty Needs Eternal Vigilance 1093Means of Safeguarding Liberty 1094Importance of Article 4 1096Origin of Habeas Corpus 1096Importance of the Remedy 1097

SUB-CLAUSE (b)(i) 1101Procuring the Presence of Detenue is the First Step 1101Custody, its Essence 1101'Without Lawful Authority' and 'In an Unlawful Manner'—Connotation 1102Onus UliEffect of Illegal Arrest on Subsequent Trial 1111American Due Process Clause 1114Registration of a Case as a Ground of Defence 1118Private Custody and Remedy under this sub-clause 1119Orders, Final or Interim, that can be made under sub-clause (b)(i) 1120Petition under this Sub-Clause after Conviction 1121

CLAUSE (l), SUB-CLAUSE (b)(ü): Quo WARRANTO 1122History 1122Holding or Purporting to hold a Public Office 1125Purport ing 1125Public Office 1125Director of a Public Company, is it Public Office 1126"Under what Authority of Law" 1128

Contents xvii

Grounds on which this Remedy may be Sought 1128Malik Asad Ali Case 1129Office of Member of Assembly 1131De Facto Doctrine 1134Comments on de facto Doctrine 1136Bürden ofProof 1139The Relief is Discretionary 1139Orders, Final and Interim, that can be made under sub-clause (b)(ii) of

Clause (1) of Article 199 1140

CHAPTER 9

CLAUSE (l) SUB-CLAUSE (C) 1142

ENFORCEMENT OF FUNDAMENTAL RIGHTS BY THE HIGH COURTS 1142

Jurisdiction is concurrent 1142Aggrieved Person 1143

"AGGRIEVED PERSON" AND THE DISTINCTION BETWEEN

CITIZENS AND NON-CITIZENS 1144

Is the Relief Discretionary 1147Persons Subject to Courts' Jurisdiction under this Provision 1147Have Fundamental Rights Extra-territorial Application under Clause (l)(c) 1150Reliefs; Power is very wide 1150

CHAPTER 10

CLAUSES (3) AND (5) 1150

MATTERS RELATING TO ARMED FORCES 1150

CHAPTER nCLAUSES (4) & (4a) - INTERIM RELIEF 1153

SECTION - CSUPREME COURTS' POWER UNDER CLAUSE (3) OFARTICLE 184 TO ENFORCE FUNDAMENTAL RIGHTS

CHAPTER l

ITS LEGISLATIVE HISTORY 1157

CHAPTER 2

CONDITION OF PUBLIC IMPORTANCE 1158

Public Interest Litigation 1160

CHAPTER 3

RELATIONSHIP BETWEEN ARTICLE 199 AND ARTICLE 184(3) 1161

Do the Constraints of Article 199 Apply to Article 184(3) 1161

xviii Judicial Review of Public Actions

Leading Cases 1162The Other View 1171Comments on the Conflicting Views 1177

CHAPTER 4

HAVE FUNDAMENTAL R I G H T S EXTRA-TERRITORIAL

APPLICATION 1182

SECTION - DRELIEFS THAT MAY BE GRANTED TO

ENFORCE FUNDAMENTAL RIGHTS

CHAPTER l

ENFORCING THE FUNDAMENTAL RIGHTS H84

CHAPTER 2

POWER T O G R A N T RELIEFS IS VERY W I D E H84

Power is to give any Direction 1184Damages 1185Damages is Private Law Remedy in a Public Law Action 1188Interference with Death Sentence 1188

PARTXSOME IMPORTANT JUDICIAL REVIEW TOPICS

SECTION -AJUDICIAL REVIEW OF PRIMARY LEGISLATION

CHAPTER 1

SCOPE OF JUDICIAL REVIEW OF PRIMARY LEGISLATION 1193

Distinction between Primary and Subordinate Legislation 1193Basis and Rationale of Judicial Review of Legislation 1193

CHAPTER 2

HOW DOES THE QUESTION OF CONSTrrUTIONALrrY ARISE 1203

CHAPTER 3

G R O U N D S O N WHICH PRIMARY LEGISLATION CANNOT

BE CHALLENGED 1204

Natural Justice 1204Unreasonableness, mala fides etc. 1206

Contents xix

CHAPTER 4

THE GROUNDS OF CHALLENGE TO PRIMARY LEGISLATION 1206

CHAPTER 5

CATEGORIES OF CONSTITUTIONALLY INVALID LEGISLATION 1208

CHAPTER 6

DISTRIBUTION OF LEGISLATIVE POWERS AND

RESOLUTION OF CONFLICTS 1208

Division of Powers in a Federal System 1208Distribution under Articles 141 to 144 1209"Subject to the Constitution"—Its Connotation 1210Territorial Limits 1211Matters in the Legislative Lists 1211Scope of Article 143 1212

Existing Laws and Question of Repugnancy 1215Scope of Article 144 1216Emerging Propositions 1216

CONFLICTS AND THEIR RESOLUTION 1217

The Scheme 1217Interpretation of Legislative Lists 1217

Federal Government is One of Enumerated Powers 1218General Words in Lists to be Broadly Construed 1222The Doctrines of 1223Incidental and Ancillary 1224Pith and Substance 1225Illustrative Cases 1226The Doctrine of Pith and Substance as Applied to Tax Legislation 1230

CHAPTER 7

CONTRAVENTION OF EXPRESS OR IMPLIED PROVISION OF

CONSTITUTION CONTRAVENTION OF EXPRESS PROVISION 1231

1. CONTRAVENTION OF IMPLIED PROVISIONS 1231

2. CONTRAVENTION OF IMPLIED PROVISIONS 1233

Separation of Powers 1233Excessive Delegation of Legislative Power 1233Excessive Delegation - Some Comments 1245

CHAPTER 8

JUDICIAL REVIEW OF CONSTTTUTIONAL AMENDMENTS 1246

The Question 1246In USA 1247

xx Judicial Review of Public Actions

BASIC STRUCTURE DOCTRINE 1249

In India 1249In Pakistan 1254Position re-Stated with Comments 1265What is Comprised in Basic Structure 1271Effect of Basic Structure Theory on Provisions Like Clauses (5) and (6) of

Article 239 of the Constitution of Pakistan 1275

SECTION - BJUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

CHAPTER 1

JUSTIFICATION FOR TREATING SUBORDINATE LEGISLATION

WITH ADMINISTRATIVE ACTIONS 1277

Subordinate Legislation is a Form of Administrative Action 1277

CHAPTER 2

THE DOCTRINE OF ULTRA VIRES 1278

Its Concept 1278Its Relevance under Article 199 1278Ultra vires described 1279

C H A P T E R 3

N A T U R E OF S U B O R D I N A T E LEGISLATION 1279

What is Subordinate Legislation 1279Delegated Legislation is a Misnomer 1280

Distinction between Primary and Subordinate Legislation 1280Reason and Need for Delegation 1281Subordinate Legislation is as much Law as Primary Legislation 1282Interpretation of Subordinate Legislation 1283

When Rules etc are Required to be Laid before Assembly 1283When Subordinate Legislation is said to be Part of the Enabling Act 1284Rule-Making Power; General Power followed by Specific 1284Principles of Natural Justice and Subordinate Legislation 1286

GROUNDS FOR ULTRA VIRES OF SUBORDINATE LEGISLATION 1287

(1) Contravention of the Constitution 1287

(2) Inconsistency with or Contravention of the Enabling Statute 1289By Changing the Definition 1290By Changing Ordinary Meaning of Words 1290When there is a Condition - Precedent 1291

(3) Affecting Jurisdiction of Courts 1291(4) Contravention of a Law other than the Enabling Enactment 1292

Contents xxi

(5) Affecting Vested Rights; Retrospectivity 1292(6) Bad faith or Mala Fides 1294(7) Unreasonableness 1294

CHAPTER 4

JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS GENERALLY 1294

Nature of Executive and Administrative Actions 1294Distinction between Judicial, Quasi Judicial, Administrative 1295Scope of Judicial Review of Administrative Actions 1299Errors of Law by Administrative Tribunals and Bodies 1301When the Administrative Authority adopts a Possible View of Law 1309

CHAPTER 5

ADMINISTRATIVE DISCRETION 1310

What is Administrative Discretion 1310Can Discretion be Absolute, Unfettered 1312

WEDNESBURY PRINCIPLES 1314

Licence, when it is a Matter of Discretion 1318Duty to give Reasons and when Evidence must be Recorded 1319Discretion in Dissolutionof Assemblies 1320Discretion to be used for the Statutory Purpose 1320Military Discretion' during War 1324

SECTION - CSOME OTHER IMPORTANT JUDICIAL REVIEW TOPICS

CHAPTER 1FAIRNESS 1325

What Fairness Requires 1325As Enacted in Section 24A General Clauses Act 1326

CHAPTER 2

NATURAL JUSTICE 1327

What it Consists of 1327Need for Caution in its use 1328Natural Justice and Process of Legislation 1329

CHAPTER 3

THE RIGHT TO BE HEARD 1329

Basis and Content of the Right 1329When Based on Statute 1332Effect of Non-Hearing 1333

xxii Judicial Review of Public Actions

Scope of Judicial Review when the Question is whether Rule to giveHearing has been observed 1336

Ouster Clauses - Their Effect on Right of Hearing 1337

CHAPTER 4T H E RULE A G A I N S T BIAS 1338

Second Pillar of Natural Justice 1338Significance of Bias 1338Principles Stated 1341Law on 'bias' as Developed in Pakistan 1350Leading Pakistan Cases 1351

The Rule of Necessity in the Context of Bias 1356Bias as Distinguished from Pre-Conceptions 1357

Decisions by a Biased Tribunal is without Jurisdiction, Despite itsCorrectness 1358

Bias can be Waived 1359The Rule against Bias Applies to Judicial Decision Makers 1359Bias must be Personal not General 1359Bias in an Administrator in Quasi-Judicial Capacity 1360

CHAPTER 5

D U T Y TO GIVE REASONS 1360

Its Various Aspects 1360The Source of the Duty to Give Reasons 1362Legal Consequences of Failure to Give Reasons 1363

CHAPTER 6

DUTY T O COMMUNICATE THE ADVERSE ORDER 1364

Need for 1364Section 24A General Clauses Act 1365

CHAPTER 7

LEGITIMATE EXPECTATION; PROMISSORY ESTOPPEL 1365

Their Relationship 1365Legitimate Expectation, its Evolution and Meaning 1366Role of the Court 1367It can be Procedural or Substantive 1367Promissory Estoppel, its Origin 1368Applied in public law as ground of Attack 1369The Doctrine is Explained 1371

CHAPTER 8

UNREASONABLENESS 1372

It is a Term of Art 1372

Contents xxiii

Wednesburry Principles 1372Applied in Pakistan 1373

Proportionality, äs Part of Reasonableness 1374European Law 1375

In England 1376In India 1379In Pakistan 1380

Jurisprudential Basis for Proportionality 1381

CHAPTER 9

MALA FIDES 1383

Its Significance 1383Mala fides in fact and in Law 1384Onus to Prove mala fides 1385Article 150 of the Constitution, Füll Faith to Public Action 1386Mala fides cannot be attributed to Primary Legislation 1387

CHAPTER 10

TIME-LIMIT CLAUSES 1388

Their Categories 1388The Rule 1388The Rule as Stated in the Constitution 1389Examples from the Constitution 1390Examples of Statutory Time-Limits 1391

Exceptions 1392Waiver 1396

Scope of Judicial Review in these Matters 1397A Final Decision in a Time-Barred case cannot be ignored in Subsequent

Proceedings 1399

CHAPTER l l

JUDICIAL REVIEW IN NATIONAL SECURITY AND

EMERGENCY MATTERS 1400

Security and National Security 1400Scope of Judicial Review 1400National Security in the Context of Terrorism 1405

CHAPTER 12

QUESTIONS OF FACT 1409

As Distinguished from Question of Law 1409Essential Steps in Judicial Process 1410Question of Law-meaning 1411Jurisdictional Facts 1413

xxiv Judicial Review of Public Actions

Whether a Fact is a Jurisdictional Fact Depends on the Statute 1416Final Decision of Fact by one Tribunal cannot be set aside by another

Limited Tribunal 1416Objection to Jurisdiction based on Non-Existence of Jurisdictional Fact 1417Non-Jurisdictional Facts 1417Resolution of Disputed Questions of Fact in Judicial Review 1417In Constitutional Matters 1420Judicial Notice of Facts 1423

Cases of No Evidence, or Insufficient Evidence, etc. 1424Unfairness Resulting from Errors of Fact 1425Privileged Material and the Court's Duty 1426Newspapers as Evidence of Facts Stated therein 1430

CHAPTER 13

JUDICIAL REVIEW OF THE DECISIONS OF COURTS 1433

Courts, Meaning 1433The Approach 1434Scope of Review of Decisions of Such Courts 1435Courts or Tribunals under Articles 212 and 225 of the Constitution 1439

JUDICIAL DISCRETION 1440

Scope of Reviewing Judicial Discretion 1441

CHAPTER 14

GRANTING DECLARATION ON A QUESTION OF

CRIMINAL LAW 1442

Scope 1442During Investigation 1443When there is no, or even Threatened Prosecution 1445Control of Investigation 1448Amenability to Justice 1449

PART XITHE DOCTRINE OF NECESSITY AND POWER OF

JUDICIAL REVIEW

Two extremes of the Spectrum 1453Salus Populi Est Suprema Lex 1453The Doctrine of Necessity is False 1467Comments 1473

Bibliography 1477Index 1483