Judicial Review

Introduction:

Judicial review is a form of court proceeding, usually in the Administrative Court in which the
judge reviews the lawfulness of a decision or action, or a failure to act, by a public body
exercising a public function. It is only available where there is no other effective means of
challenge.
Judicial review is concerned with whether the law has been correctly applied, and the right
procedures have been followed. In order to succeed the claimant will need to show that either:
• A public body is under a legal duty to act or make a decision in a certain way and is
unlawfully refusing or failing to do so; or
• A decision or action has been taken by a public body that is beyond the powers it is given
by law.
• Judicial review is about the supervision of administrative decision making. It can be a
fast, effective and powerful way to convince a public body to reconsider a decision or
force them to take action they should be taking. The court’s decision must be followed,
and one judicial review case can make a difference to many other people.

Judicial Review is the process through which an aggrieved person can find redress in a Court of
Law.  Judicial Review forms part of administrative law because it is the most appropriate way
that an aggrieved party aggrieved by an administrative body can find redress.

Legal Definition: A court's authority to examine an executive or legislative act and to

invalidate that act if it is contrary to constitutional principles. The power of courts of law to
review the actions of the executive and legislative branches is called judicial review.

According to Webster’s dictionary of law: Judicial review is the re-examination

and reconsideration of the legality or constitutionality of something as the proceeding of a lower
court or tribunal or a legislative enactment or governmental or administrative action.
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/decisions because it exists to
check, not to supplant (replace) them.

PRACTICE AND CONCEPT OF JUDICIAL REVIEW: • The concept of judicial review has
developed in countries like England, US, and also Pakistan and India.
 The doctrine of judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the American Constitution for the judicial
review.
In Marbury v. Madison
Pakistan: In Pakistan Judicial Review of administration action has followed that of Britain
and USA. In Pakistan where there is a written constitution then power of judicial review has
been accepted as the “heart and core” and treated as the “basic and essential” feature of the
constitution and the safest possible safeguard (protection) against the abuse of power by any
administrative authority.
Decisions can be challenged by judicial review
Decisions made by public bodies in a public law capacity may be challenged by judicial review.
Examples of the public bodies whose decisions can be challenged are: Government Ministries
and Departments, local authorities, health authorities, chief officers, some tribunals (but not if
you could appeal to a higher tribunal or court), magistrates etc.
Who can bring a judicial review?
You have to have an interest in the decision you are challenging to bring a judicial review. That
means you have to have sufficient connection to the subject matter of the claim.
Power of Judicial Review in Pakistan
Though no express provision as to “Judicial Review” has been given in the Constitution of
Pakistan, however, Supreme Court of Pakistan may under Article 184(3) and Any High Court
may under Article 199 exercise the power of judicial review.
Jurisdiction of High Court, Under Article-199 of the constitution of Pakistan clause 1 states
that
Subject to the Constitution, a High Court may, if satisfied that no other adequate remedy is
provided by law:
• On the application of any aggrieved any aggrieved person make an order;-
• Directing a person performing ,within the territorial jurisdiction of the court ,function
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 so, or to do anything he
is required by law to do :or
• Declaring that any act done or proceeding taken within the territorial jurisdiction of
the court by a person performing functions in connections 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
• On the application of any person make an order
• 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
• Requiring a person within the territorial jurisdiction of the court holding or purporting
(claiming) to hold a public office to show under what authority of law he claims to
hold that office :
• 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 right.

The Jurisdictional Principles /Doctrine of Ultra Vires

Doctrine of Ultra Vires:

Meanings: Ultra Vires is a Latin word which means; “Beyond Power”.

If an act requires legal authority and it is done with such authority, it is characterized in law an
intra Vires (Literally within the powers).

Acts that are intra Vires may be equivalent be termed Valid and those that are Ultra Vires are
Invalid.

The Doctrine is of two Kinds

• Substantive Ultra Vires:

The situation where the executive authorities enact (Pass) 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
statue.

IMPORTANCE OF JUDICIARY• One peculiar (strange) aspect of all South Asian

countries, particularly Pakistan, is that socio-economic (relating to or concerned with the
interaction of social and economic factors) conditions are extremely oppressive (harsh). The
government machinery, in each one of these countries, has become an instrument (tool) in
the hands of the corrupt elite to oppress (keep (someone) in subjection and hardship) the
common man. Instead of getting justice from the administration, the common citizens
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 Jurisdictional 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 subject matter by interfering on the grounds of unreasonableness, bad faith,
extraneous (unimportant) consideration, unfairness ETC
Grounds of judicial review of administrative action:
• Unreasonableness:
Doctrine of unreasonableness has been developed in rule that powers particularly
discretionary (open) ones, have to exercise judicial (legal) and not arbitrarily (illogically).
• Improper motive:
A court can also inquire into the motives of the authorities passing orders when such
orders are under review.
• Malafide orders:
Malafide orders means which is not passed by the enactment(according to law) but for
other ulterior motives (hidden reasons)
• Irrelevant consideration:
It is an established principle that in exercising discretion, the authorities must have regard
to all relevant consideration and disregard all irrelevant consideration
• Acting under dictation:
Person so authorized must not act under dictation, discretionary powers must be
exercised only by persons authorized by statute.
• Abduction of authority or Discretion
Person invested with discretion must exercise it properly and are not allowed to surrender
their power.
• Subjective(Personal or Individual) Discretion
Exercising of subjective discretion by authority allowed under an enactment has been
brought under judicial review.
• Lack of Jurisdictation
It is a basic principle of administrative law that no can act beyond its power. This lies
at the basis of Judicial Review on the ground of lack of jurisdiction. No authority can
exceed the power given to it, and any action taken by it in excess of its power is
invalid.
• Procedural defect
If an authority fails to observe a procedural requirement which is considered to be
mandatory, then its decision is liable to be quashed on the ground of ultra vires.