Judicial Review of Administrative Actions in Light of References

Answer:

 

INTRODUCTION:

Judicial control of an administrative action is one of the organs of administrative law. Judicial review has developed by the courts, which Have the power of final interpretation of statutory laws, and a power to provide judge made remedies where the statutes are silent. The function of judicial review is to act as a check against excess of power in derogation of private right, yet judicial review cannot supervise all administrative adjudications, for it exists to check, not to supplant them.

DEFINITION OF JUDICIAL REVIEW:

According to Black’s Law Dictionary 9th edition:

“A court’s power to review the actions of other branches or levels of government and a court’s review of a lower courts or an administrative body’s factual or legal findings.”

SCOPE OF JUDICIAL REVIEW:

The scope of judicial review has often depended on whether a given function is classified as judicial or administrative in nature. In general, judicial review covers not only the actions and decisions of executive and administrative bodies but also the decisions made by the judicial tribunals and actions of all other authorities where the statutory remedy is not available.

PRACTICE AND CONCEPT OF JUDICIAL REVIEW:

The concept of judicial review has developed in countries like England, US, also Pakistan and India.

The concept of review of order of administrative bodies by the ordinary courts is foreign to civil law countries like France and West Germany.

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.

MODES OF JUDICIAL REVIEW:

There are two modes of judicial review of administrative action:

·       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.

Constituency of   public law review: under the provision of article 184(3) and 199 of Pakistan constitution. The supreme court and high court have power to issue writs in the nature of habeas corpus, mandamus, certiorari, prohibition, and quo warrants.

Limits of 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.

·       Laches or unreasonable delay

·       Alternative remedy

·       Res judicata

Laches or unreasonable delay: through writ issuing of supreme court and the high court is mandatory, however the court may refuse remedy if there is unreasonable delay in invoking the jurisdictions 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 under article 184(3) and 199 on the ground of alternative remedy.

Res judicata: the principles of res judicata which is grounded on public policy applies in the public review are 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.

·       Habeas corpus

·       Mandamus

·       Prohibition

·       Certiorari

·       Quo warranto

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, he is not being held in custody without lawful authority or in an unlawful manner.

Mandamus: means to order to do an act which is under obligation to do that. [PLD 1957 Karachi 175]

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.

 [PLD 1963 Lahore 127]

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:

·       Injunctions

·       Declaratory actions

·       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. [A.V. Home office 1994 AC 377]

 

Declaratory actions: a declaratory action signifies a judicial remedy, which conclusively determines the rights of the parties. [PLD 1985 DACCA 47]

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. [Ramiz Ahmed vs Punjab province PLD 1964 Lahore 736]