A REPORT ON JUDICIAL REVIEW AND ITS COMPARATIVE STUDY
Introduction:
Law pervades everywhere and everything; it is all-embracing and permeates every sphere of life and society. Knowledge of law, both professional and general, therefore, is indispensable for human development. Law which is created based on social demand and human need is an imperative category, and ought to rule. Everywhere it ought to be the rule of law — law as a body of norms regulating human and institutional behaviour and their interrelationships. General perception of the concept of rule of law brings to one’s imagination two elegant categories of personalities i.e. judge and lawyer, who form the core of justice system. When law is abused, or law is misapplied, or law is not properly made, it is the task of the justice system i.e. the judiciary to intervene to ensure that law prevails, and only law rules. However, this is only one way, fundamental though, of looking at rule of law. Judges and lawyers are not the only actors in the broader spectrum to provide for rule of law. Rule of law would depend on many factors, individuals and institutions.
Bangladesh is unitary independent sovereign, Republic to be known as the peoples Republic of Bangladesh and by nature, man is rational as well as animal being and they live together in the society depending upon each other to fulfill their needs for survival. As Social beings, men express their nature by creating and recreating an organization which guides and control their behavior in many way.
Constitution is such a instrument which enables the human society to guide and control of the members of that society i.e. state and confer rights and impose duties to man as such they may able to lead their life balanced with preservation, production and growth. Human fundamental rights are those rights which are associated with the very birth of mankind in that these are essential requirement for existence of human being. Without such human rights no man can live in the society as with the due dignity.
Generally Judicial Review means the power of the courts to review the legislative and executive action and determine their validity. Courts exercise such power on the basis that powers can be validly exercised only within their true limits and a public functionary is not to be allowed to transgress the limits of his authority conferred by the constitution or the law.
According to Chief Justice John Marshall –
“Judicial Review is the power given to Supreme court justices in which a judge has the power to reason whether a law is unconstitutional or not. Chief Justice John Marshall initiated the Supreme Court’s right to translate the Constitution in 1803 following the case of Marbury Vs. Madison, in which he declared the Supreme Court as the sole interpreters of Constitutional law. This is one of the sole purposes of the Supreme Court of the United States. Many Historical thinkers would find some difficulty in imagining a government set up to limit the power of itself, but others would argue that this form of government best works for the people, and not against them. The treatment of the Constitution by the Supreme Court as a “living” document that is able to be translated differently over time for the good of the people has as many skeptics as it does supporters.”
Machiavelli would also totally disagree with the idea of having anyone make decisions about laws because they are morally incorrect. And, the Supreme Court’s protection of the people of the United States, and its Constitution is also a necessity in running a truly virtuous and successful government that concentrates on the rights of the individual, rather than the people as a whole. Machiavelli found the most successful government to be one that ruled on the basis of “realism” not “idealism”. We today see the Supreme Court as a collection of the most “enlightened” thinkers of our day. Locke felt that for a government to be successful in preserving the rights of the individual citizen, it must concentrate on protecting the “Life and Liberty” of each citizen. These beliefs have
Molded one of the most successful political states in modern History. They only believed in the truth, and justice that government is supposed to protect its people with. He felt that a government should be run with the sole intention of forcing the people to be obedient, and for the individual virtues of the people to be a non-factor in any political decisions made by the ruler of the state. Plato knew that within any political State their would be corruption, to stop the corruption Plato felt that the philosopher kings would best rule because they would not indulge themselves in a corrupt society. The Constitution of the United States is the ideal document in Locke’s mind.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]
One of the earliest political philosophers Plato, would find our present day governmental setup of the Supreme Court to be the ideal group to deal with the United States’ situation. Others thought that one sole dictator or King could best run a successful government. Some believed that the people would best run a government.
A more modern philosopher such as John Locke, would find the Supreme Court and its power of Judicial Review to be one of the most important characteristics of the United States’ setup of Democracy. Locke believed that all people should be treated as equals, and to not treat each other equally would interfere on an individual’s right to “self Preservation”
While reviewing the validity of the authority the flowing question are to be inquired and determined
a. has exceeded its power?
b. Committed an error of law?
c. abused its power?
d. e. reached a decision which no reasonable authority would have reached?
f. failed to observe the statutory procedural requirements and the common law principles of natural justice or procedural fairness?<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
Judicial review in other countries:
Judicial Review in USA
The Supreme Court’s principle power is judicial review the right of the Court to declare laws unconstitutional. This authority is not expressly stated in the Constitution. The Supreme Court has exercised judicial review since 1803, when Chief Justice John Marshall first announced it in Marbury v. Madison. Marshall deduced the necessity of such a power from the purpose and existence of the Constitution. He reasoned that judicial review was necessary to implement the Constitution’s substantive and procedural limits on the government. If the Court could not strike down a law that conflicted with the Constitution, Marshall said, and then the legislature would have a “real and practical omnipotence.” Judicial review is both a powerful and controversial tool because it allows the Supreme Court to have the ultimate word on what the Constitution means. This permits the Court justices are appointed rather than elected—to overrule decisions already made by Congress and legislatures throughout the country.
Judicial Review and J. Marshal:
As the fourth Supreme Court (1803) Chief justice of the United States of America, John Marshall created a legacy that has endured nearly two hundred years. While writing the majority opinion for the Supreme Court case of Marbury v. Madison in 1803, he single-handedly changed the course of our judicial system. He did this by granting the judicial branch the power to determine a law unconstitutional, otherwise known as judicial review. The question at hand, then, is to explore how this one ruling on a seemingly insignificant case became a worthy landmark on the timeline of United States history. Just as any decision, at any specific point in time, Marshall did not intentionally choose to eradicate the norm and clear a new path for the future. He was neither attempting to establish judicial supremacy nor rewrite the law. Nevertheless, this seemingly ingenious decision was clearly groundbreaking in that it was the first instance on which the Supreme Court officially established its power over legislation, and has since been viewed as the basis for judicial authority (Gunnarson 2). However, John Marshall’s ruling in the case of Marbury v. Madison was undoubtedly the only logical choice, and was based on three important factors:
‘The judicial branch had neither the power of force, which belonged to the executive branch, nor the will of the people, which belonged to the legislative branch.
One way to explain a specific moment in time is to relate it to other events in history. Several months later, the debate changed from whether or not to create this “Council of Revision,” to who should belong on it. By basing his opinion on previous models of judicial review, Marshall used the powerful tool of precedent to help further his political party. John Marshall created an outcome that best benefited his own personal and political party’s interests, by establishing a check on the legislative branch and by enforcing popular sovereignty as laid out in the Constitution. He believed a strong central government and popular sovereignty, were two crucial elements in the success of a nation. John Marshall did not invent
judicial review, yet crafted a clever way to declare its credibility. Both Federalists and anti-Federalists reached an understanding that judicial review was necessary. This proves that some delegates already believed the powers of judicial review were assumed well before John Marshall was Chief Justice. The central argument between the delegates was whether or not judges should be allowed to be participants on the council.
At the time preceding the Marbury v. Madison As a staunch Federalist, Marshall viewed the Constitution as the fundamental law of the land. The federal courts were under a continued attack by newly appointed President Jefferson and the Republican Party who wished to bring the courts under the command of the executive branch. If Marshall had not established the power of judicial review through this case, he would have missed a crucial opportunity to help empower the Federalists.
Marbury v. Madison:
The Marbury vs. Madison case resulted in the most important Supreme Court decision in history. The court’s ruling established the power of judicial review, solidified the Constitutional system of checks and balances, strengthened the power of the federal government, and made the Judiciary an equal partner with the Legislative and Executive branches of government. In the Election, Thomas Jefferson and his anti-federalist Republican Party defeated the incumbent John Adams and the Federalist Party. The Republicans also in Congress In an effort to keep at least one branch of the government under Federalist control Congress passed the Judiciary Act of 1801 in a lame-duck session. The bill reformed a 1789 statute and created many new judgeships. Adams nominated judges and the Senate confirmed them. Adams then stayed up until long after midnight on March3, 1801 his last full day in office, signing commissions that put fifty-nine loyal Federalists in office. These were the so-called “midnight judges.” In the final weeks before Jefferson took office, John Marshall was Secretary of State and Chief Justice simultaneously.
Even with Marshall’s suppression of this states’ right of review. Even at the time that the case was decided, it was insignificant because Marbury’s term as justice would have the time the Court was ready to consider it. Four of the uncommissioned justices of the peace, including William Marbury, sought a writ of mandamus, or order directing Madison to deliver the commissions. The idea came up as the nullification controversy of Calhoun and ultimately was a cause of the Civil War. Next, Congress, using its authority under the Constitution to make “regulations” for the federal court, shut down the Supreme Court for a year. If he denied the request, the Supreme Court would be left a “helpless victim of presidential or congressional whim”. As these facts demonstrate, Marbury had incalculable effects on the Constitution and government. Marshall had forever changed the task of the Supreme Court. The system of separation of powers implied that each branch, “as Madison remarked, had’ the necessary constitutional means, and personal motives, to resist the encroachments of the others. Outraged by Adams’ appointments, Jefferson ordered Madison not to deliver the commissions.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]
The first would have based judicial review on the supremacy in the Constitution. Judicial review completed the system of checks and balances that was a vital component of the Constitution. However, this did not prevent Marshall from using the case to suit his purposes. However, Marshall realized that such an argument would also serve to emphasize the other branches’ checks on the Court and, more importantly, would have made all branches legitimate interpreters of the Constitution.
The importance of judicial review in Bangladesh,
Opportunity for the public to participate:
Judicial review creates a right for individuals to approach the court for relief over a breach of an Act. It makes it possible to challenge a determination of the consent authority. Judicial review of environmental matters therefore allows the public an opportunity to participate in the environmental planning and development process.
Opportunities available for relief
In Bangladesh there is currently no environmental legislation, which gives the opportunity to a person to bring proceedings for remedy or restrain the breach of an Act. Notwithstanding, a person may seek judicial review under the Civil Procedure Code 1908 or Criminal Procedure Code 1898, though there has been little reference made to the opportunities available for relief under these Codes.
Judicial review in English Law
Judicial review is a procedure in English Administrative Law by which English courts supervise public authorities in the exercise of their powers.
A person who feels that a decision of a public authority, such as a government minister, the local council or a statutory tribunal has violated his or her rights, may apply to the High Court for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.
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.
Constitutional position
The English constitutional theory as expounded by A.V. Dicey does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries).
Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts.
At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (Acts of Parliament). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special “prerogative orders” are available in certain circumstances.
The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the “will of Parliament” in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to judicial review. Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.
Procedural requirements
Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:
The application must be made promptly and in any event within three months from the date when the grievance arose. Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough.
The applicant must have sufficient interest in a matter to which the application relates. This requirement is known as the requirement of standing.
The application must be concerned with a public law matter, i.e. the action must be based on some rule of public law, not purely tort or contract.
However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, to examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough. Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]
Amenability to judicial review
The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.
Ouster clauses
Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them ‘final’, ‘binding’ and not apellable. However, the courts have consistently held that none but the clearest words can exclude judicial review. When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion)181 The Government withdrew the proposal.
The courts however do uphold shorter time limits on applications for judicial review.
The decision is taken by the wrong person (unlawful sub-delegation)
If the law empowers a particular authority, e.g. a minister, to take certain decisions, the Minister cannot subdelegate this power to another authority, e.g. an executive officer or a committee. This differs from a routine job not involving much discretion being done by civil servants in the Minister’s name, which is not considered delegation.
The powers used for the purpose different from the one envisaged by the law under which they were granted
A good example of this is the case of R v Secretary of State for Foreign Affairs. The World Development Movement. S 1 of the Overseas Development and Cooperation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds for development aid. The Secretary assigned the funds for a project to construct a power station on the Pergau river in Malaysia. The House of Lords held that this was not the purpose envisaged by the enabling statute and the Minister therefore exceeded his powers. A similar principle exists in many continental legal systems and is known by the French name of denouncement dupouvoir.
Error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal term or incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers. However, where a term to be evaluated by the authority so broad and vague that reasonable people may reasonably disagree about its meaning, it is generally for the authority to evaluate its meaning. So, in R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484, the local authority had to provide homeless persons with accommodation. The applicants were a married couple, who lived with her two children in one room and applied to the local authority for aid. The local authority refused aid because it considered that the Pulhofers were not homeless and the House of Lords upheld this decision because whether the applicants had accommodation was a question of fact for the authority to determine.
Ignoring relevant considerations or taking irrelevant considerations into account
An example of this can be seen in Wheeler v Leicester City Council, where the City Council banned a rugby club from using its ground because three of the club’s members went on a tour in South Africa at the time of apartheid. In R v Somerset County Council v Fewings the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry into a certain matter because he was afraid of bad publicity. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably (this may also be qualified as having used their powers for an improper purpose).
Fettering discretion
An authority will be acting unreasonably were it refuses to hear applications or takes certain decisions without taking individual circumstances into account by reference to a certain policy. When an authority was given discretion, it cannot bind itself as to the way in which this discretion will be exercised either by internal policies or obligations to others. Even though an authority may establish internal guidelines, it should be prepared to make exceptions on the basis of every individual case.
Irrationality
Under Lord Diplock’s classification, a decision is irrational if it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.” This standard is also known as Wednesbury unreasonableness, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.
Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision “makes sense”. In many circumstances listed under “illegality”, the decision may also be considered irrational.
Proportionality
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recongnised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational.
Procedural impropriety
A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the ‘rules of natural justice’ have not been adhered to.
Statutory procedures
An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body. Courts distinguish between “mandatory” requirements and “directory” requirements. A breach of mandatory procedural requirements will lead to a decision being set aside for procedural impropriety.
Breach of Natural Justice
The rules of natural justice require that the decision maker approaches the decision making process with ‘fairness’. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625 “the rules of natural justice are not engraved on tablets of stone.” the Below are some examples of what the rules of natural justice require:
The rule against bias
The first basic rule of natural justice is that nobody may be a judge in his own case. Any person that makes a judicial decision – and this includes e.g. a decision of a public authority on a request for a license – must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the interest has influenced the decision. The test as to whether the decision should be set aside is whether “a fair-minded and informed observer would conclude that there was a real possibility [of bias]”.
The right to a fair hearing
Whether or not a person was given a fair hearing of his case will depend on the circumstances and the type of the decision to be made. The minimum requirement is that the person gets the chance to present his case. If the applicant has certain legitimate expectations, for example to have his licence renewed, the rules of natural justice may also require that he is given an oral hearing and that his request may not be rejected without giving reasons. Where the decision is judicial in nature, for example a dismissal of an official in punishment for improper conduct. the rules of natural justice require a hearing and the person question must know the case against him and be able to examine and object to the evidence.
Duty to give reason:
Unlike many other legal systems, English administrative law does not recognise a general duty to give reasons for a decision of a public authority. A duty to give reasons may be imposed by statute. Where it is not, Common Law may imply such a duty and the courts do so particularly with regard to judicial and quasi-judicial decisions.
The remedies traditionally available in judicial review are the so called prerogative orders: certiorari, mandamus and prohibition. In the language of the new Civil Procedure Rules, these orders are now known respectively as the quashing order, the mandatory order and the prohibiting order. A claimant [or judicial review may also seek an injunction, a declaration and/or damages.
A declaration declaring a decision void is equivalent to the quashing order, and is usually used to declare a statute or a regulation incompatible with a higher norm of law, such as the European Convention of Human Rights or EC law.
The remedies of declaration, injunction and damages are discretionary remedies.
Scope and components of judicial review
Broadly speaking, judicial review in India comprises of three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. The judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of functions, transgress constitutional limitations. Thus, judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.
Limits of Judicial Review
It is true that the courts have wide powers of judicial review of Constitutional and statutory provisions. These powers, however, must be exercised with great caution and self-control. The courts should not step out of the limits of their legitimate powers of judicial review. The parameters of judicial review of Constitutional provisions and statutory provisions are totally different. In J.P.Bansal v State of Rajasthan the Supreme Court observed: “It is true that this court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute. It endangers continued public interest in the impartiality of the judiciary, which is essential to the continuance of rule of law, if judges, under guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matters come consider to be injurious to public interest. Where the words are clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or to take upon itself the task of amending or altering the statutory provisions. In that situation the judge should not proclaim that they are playing the role of lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so”.
If case the court forgets to appreciate this judicial wisdom, it would undermine the constitutional mandate and will disturb the equilibrium between the three sovereign organs of the Constitution. In State (Govt of NCT of Delhi) v Prem Raj the Supreme Court took a serious note of this disturbing exercise when the High Court commuted the sentence by transgressing its limits. The court observed:
“The power of commutation exclusively vests with the appropriate government. The appropriate government means the Central government in cases where the sentence or order relates to a matter to which the executive power of the Union extends, and the state government in other cases. Thus, the order of the high Court is set aside”. Similarly, in Syed LA. Haqshbandi v State of J&K the Supreme Court observe:
“Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the court exercising powers of judicial review unlike the case of an appellate court would neither be permissible nor conducive to the interests of either the officer concerned or the system and institutions. Grievances must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the court in exercise of its powers of judicial review. Unless the exercise of power is shown to violate any other provision of the Constitution of India or any of the statutory rules, the same cannot be challenged by making it a justiciable issue before the court”.
The courts are further required not to interfere in policy matters and political questions unless it is absolutely essential to do so. Even then also the courts can interfere on selective grounds only. In P.U.C.L v U.O.I the Supreme Court observed: “This court cannot go into and examine the need of Prevention of Terrorism Act. It is a matter of policy. Once legislation is passed, the government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional”.
Similarly, in U.O.I. v International Trading Co the Supreme Court observed:
“Article 14 of the Constitution applies also to matters of government policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, ‘what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any other ulterior criteria. The wide sweep of Article 14 and the requirement of every state action qualifying for its validity on this touchstone, irrespective of the field of activity of the state, is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heartbeat of fair play. Every state action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary”.
Similarly, where a political question is involved, the courts normally should not interfere. It is also equally settled law that the court should not shrink its duty from performing its functions merely because it has political Thus, merely because the question has a political complexion that by itself is no ground why the court should shrink from performing its duty under the constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political. So large as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so.
Although Malaysia inherited the political system of British India based on the Westminster system which made no provision for judicial review, the Federal Constitution of Malaysia instituted a system based on that of the India which was in turn influenced by other constitutions including that of the United States. Judges are empowered to declare laws or executive actions ultra vires if they clashed with the Constitution and/or the parent legislation. However, this power was curbed after the 1988 Malaysian constitutional crisis by then Prime Minister Mahathir bin Mohamad through amendments to the Federal Constitution. A particularly significant amendment was the removal of the judicial power and subjecting the judiciary to such jurisdiction and powers as may be conferred by or under federal law)121 The merits of detentions made under the Internal Security Act are also not subject to judicial review, but the procedures are.
Grounds of judicial Review:
The principal ground on which the judicial control of the Administrative action can be made are:
1 Ultra Vires
2. Abuse of discretionary power
3. Proportionality
4. Legitimate expectation.
5. Unreasonable exercise of powers
6. Estopped – Promissory Estoppels
7. Illegality
8. Procedural : Improprietory
1. Natural Justice
2. Right to reason
3. Rule against Bias
4. Fairness
9. Jurisdiction
10. Justicibility
1. ULTRA VIRES:
Ultra vires doctrine simply means that an authority has no power to do act complained of. An authority can only do things permitted by the statute to be done and things which are not expressly conferred by the statute are forbidden to be done. Thus doctrine is very important are most of the administrative powers are statute and it is for the court to scrutinize and find out whether the action taken by the authority was within their jurisdiction or they have travelled boyond the scope of their authority.
2. Ultra vires, letterally means beyond ones powers. It only means that something has been done by a person or body of persons which was beyond his or their power. The term ultra vires signifies a concept distinct from illegality.
3. One of the grounds ofjurdicial review is simple “ultra vires’. In the case’ the principle of simple ultra vires had clear statutory power under the Baths and Wash Houses Acts 1846 to 1848, to run municipal baths and wash houses. It was held that by starting to operate a municipal lanudry to which the public brought their clothes to be washed not by themselves but by the council employees, was beyond the power. To run municipal baths and wash houses does not and cannot include the running of municipal lanudry in which public will have access for their clothes being washed not by themselves but by the council of employees, it was a case of simple ultra vires by the local authorities and accordingly, the running of a municipal laundry for such a purpose was held to be acting beyond powers and authorities by the municipal authorily and was held to be ultra vires.
4. The object of the doctrine of ultra vires is the protection of the public.
5 . An authority may go wrong in law for non-compliance of statutory procedures, breach of the principles of natural justice or acting contrary legitimate expectation. Statutes conferring power on public functionaries often impose conditions relating to procedure for exercise of power e.g. notice, hearing, time limited etc.It is rarely stipulated the consequence of non-compliance with such conditions, Compliance with such Conditions may be mandatory or directory. But it is difficult to make a clear-cut distinction between there two conditions
6. Some case law indicating the various ways of ultra vires.
Unconstitutional:
A rule conferring power on state to levy excise duty beyond the limits fixed by the constitutions of India, is a ultra vires as it exceeded the constitutions limit fixed by the constitutions of India.
Bad Faith:
Power is exercise in bad faith where its repository is motivated by the personal animosity towards those who are directly affected by exercise .power is no less abuse ever when its exercise in good faith but for an unauthorized purpose or on irrelevant ground.
Circular; Circular or administrative instruction can not replace the rules frame under Act 309 of the constitution (India) as the same is ultra vires.
By law.
Any provision of any item of delighted legislation is ineffective if it goes beyond the power which expressly or implication are conferred on the delegated by the enabling Act. The provision is then said to be Ultra vires.
Rule contrary to act:
Rule contrary to Act is Ultra vires.
Ultra vires and void:
(a) If any body created by statute goes beyond the area of its power, the act is Ultra Vires it is of no effect.
(b) Authority in which a statuary discretion is vested can not deny itself, the direction by its self created rules of policy.
(c) A rating list is so defective that it is a Nullity; there is no need for an order to quash it. It is automatically null and void without much ado.
(d) Appointment of teacher is non compliance with the procedure prescribe to government resolutions and University direction, held illegal and invalid.
(9) Ultra vires contract:
The object of the doctrine of ultra vires is the protection of the public. A local authorty owes a duty to its rate prayers to preserve rate payers. funds and to arrange for proper administration. But the reasonable steps and arrangement carried out by the council for the purpose of discharging its duties must be lawful. An ultra vires transaction could not be remeded, contract is private law whereas, ultra vires is Public Law.
(10) Severence
Where possible, the court will serve the provision which is ultra vires from the rest of the instruction.
(11) Where an item of delegated legislation is ambiguous, one possible meaning being ultra vires and the other intra vires, preference should be given to the latter construction.
(12) Substantive and procedural – Bye Laws:
Substantive bye law is whether the bye is on its face invalid because either it is out deal with the power pursuant to which it was made because, for example, it seek’s to deal with matters outside the scope of the enabling legislation, or is patently unreasonable.
The procedural bye law arises where there has been noncompliance with a procedural requirement with regard to the making of that bye law, for example, if there was a failure to consult.
(13) Statutory power:
The doctrine ultra vires can cover virtually all situations where statutory power is exercised contrary to some legal principles. Where a public authorty is held to have acted for improper motive or irrelevant considerations, its action is ultra vires and void.
2. Abuse of discretionary Power
1. Meaning of Discretionary Power:
Generally a term, which involves an administrative power, i.e. a power to do or refrain from doing a certain thing or power of free decision or choice within certain legal bounds, is discretionary power.
Many administrative decisions involve an element of discretion. Some one must be given the responsibility of applying in the law to each situation as it arises. But it is observed that where discretion is absolute, man has always suffered. Since it is now judicially recognized that prerogative power is a capable of abuse as in other power, that the law can sometimes find means of controlling it. The prerogative has many times been restricted both by judicious decision and by statute.
2. In many cases, it is laid that an authority exercising discretion must — (a) take all relevant factors into account
(b) exclude all relevant facts from its consideration
(c) reach the decision which is neither purverse nor irration.
3. Parliament constantly confers upon public authorities powers which their faces might seem to be absolute and arbitrasry. But arbitrary power and unfettered discretion are what the courts refuse to countenance.
4. An exercise of discretion can not be sustained if it is found to be arbitrary as caparious” or without application of mind.
5. Principle to be followed while exercising discretionary power:
1. It is well settled principle that the power conferred might be used for the power of which they were granted and things which were incidental or ancillary to that purpose. otherwise it would be treated as a abuse of discretionary power as conferred.
2. Every discretionary power vested in the executive should be exercised in a just, reasonable and fair way and that is the essence of the rule of law.
3. Decide the matter consistent with the principle of natural justice.
4. It is well settled that while exercising its discretionary powers, the authorty must apply its mind to relevant materials and exclude from consideration the matter which is extraveous and not germane to the object.
5. A power or jurisdiction is not lost by disuse or non-enforcement even in circumstances that would ‘in private law give rise to an astoppel.
6. A failure to discharge a duty or exercise a discretion as a result of mistake of fact cannot bind the authority not to discharge the duty or exercise its discretion when the mistake is realized.
7. Statutory discretion cannot be fettered by self-created rules or policies.
8. A discretonary power cannot be struck down on the grounds of likehood of
misuse.
9. When a statute either provides guidance or rule or regulation are framed for exercise of discretion then the action should be in accordance with it.
10. The discretion is to be exercised with circums pection consistance with justice, equity and good conscience, keeping always the given facts and circumstances.
3. Proportionality:
The doctrine of proportionality is one which confines the limit of the exercise of power to means which areproportional to the object to be pursued. This has been a new ground of challenge for jurdicial review, If punishment is excessively high or disproportionate it violates the principles of natural justice.
In a case,’ the Supreme held that “It is equal true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution (India).5 The principle of disproportionate punishment as a ground to set aside the order of conviction in a criminal case. Section 5(2) of the Narcotic control Act (Canada) provides for minimum sentence of seven years imprisonment on conviction for importing Narcotics. The accused pleaded guilty for importing Narcotics contrary to section 5 of the Narcotic control Act, RSC, 1970, as a result of an attempt to bring into canada a quality of cocaine having a street value of approximately $ 50,000. It was argued that section 5 of the said Act was unconstitutional as it required imposition of Minimum term of imprisonment of seven years.
The doctrine of proportionality, as a part of the concept of jurdicial review, would ensure that even on an aspect which is, otherwise, within the exclusive provice of the court Martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In England Human Rights Act, 1998 has been passed and the decisions of the English Courts suggest that they will apply the doctrine proportionality when the administrative action involves Human Rights.
Arbitrariness based on doctrine of proportionality is not yet a recognised ground. Even in case of Administrative action, the scope of jurdicial review is limited to three grounds, viz. (a) unreasonableness, (b) illegality and (c) procedural improprietoy.
4. Legitimate Expectation:
1. In a case it was held that legitimacy was a function of expectations induced by Government and of policy consideration which mililated against their fulfilment. The balance in the first instance was for policy maker to strike: but if the outcome was challenged by jurdicial review, the court’s criterion was not the bare rationality of the policy maker’s conclusion and its task was not only to recognise the constitutional importance of ministerial freedom to formulate and to reformulate policy, but also to protect the interest of those individuals whose expectation of different treatment has a legitimacy which in fairness outlops the policy choice which threaten to frustrate.
2. The doctrine of legistimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned as LORD ROSKILL said, with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where exhypothesi there is no right to be heard, it may be thought the more important to fair dealing, that a promise or undertaking given by a minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as there, in the exercise of a prerogative power.
Scope : Legistimate expectation may arise:
(a) if there is an express promise given by a public authority, or
(b) because of the exercise of a regular practice which the claimant can reasonably except to continue;
(c) such an expectation must be reasonable.
However, if there is a change in Policy or in Public interest the position is altered by a rule or ligislation, no question of legitimate expectation would arise.’5
4. Principles, emerged from a number of cases, are as follows
(a) If the statement said to be. binding was given in response to information from the citizen, it will not be binding if that information is less then frank, and if it is not indicated that a binding statement is being sought.’
(b) He who seeks to enforce must be a person to whom (or a member of the class to which) the statement was made or the practice applied.’
(c) The statement or practice giving rise to the legistimate expectation must be sufficiently clear and unambiguous, and expressed or carried out in such a way as to short that it was intended to be binding.
(d) A case of ligitimate expectation is made out, the decision or action of the authority will not be interfered with unless it is shown to have resulted in failure of justice.
(e) The statement or practice must be shown to be applicable and relevant to the case in hand.
(0 A legitimade expectation, even though a case is made out, shall not be enforced if there is overriding public interest which requires otherwise.
5. Unreasonable Exercise of Powers:
All powers exercised by public authorities are liable to be misused. Work con3titute of misuse of public power is the subject matter of the jurdicial review and the courts intervene in case of such misuse of power. Ultra vires doctrine confires public authorities to those powers gramted by constitute. But the courts also concerned to see that not only whether power exercised exists but also whether it has been exercised reasonable. The jurdicial view in the field of public law on the ground of irrationality sometimes as unreasonableness.’
We know unreasonable means opposite of reasonable, or not agreeable to reasons.
A person entrusted with a discretiona must, so to speak direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He can not exclude from his consideration matters which are irrelevant to what he has to consider. !f he does not obey these rules, he may truly be said, and often is said, to be acting ‘unreaonably”. Similarly, there may be something to absurd that no sensible person could ever dream that it lay within the power of the authority. Border line between reasonable and unreasonable decision making, illustrate in the following cases in this sense.
(a) Rent increased from 7 pound to 18000 pound were held to be wholly unreasonable when made for the purpose of evading certain statutory provisions.
(b) A clerk’s refusal to supply duplicate legal aid order was considered to be wednes bury unreasonable
(c) A council resolution to ban lieicester Rugby Foodtball Club from its property for not putting pressure upon three of its players not to participate in a tour of South Africa was held to be irrational in the wednesbury sense.
(d) A disqualification of 18 months for careless driving was queshed as being irrational on the basis that the sentence exceeded the ambit of a discretion to such an extent that there was a necessary error of law.
6. Estoppel — Promissory Estoppel:
There can be no acquisition of power through estoppel. This doctrine of estoppel cannot operate so as to enable an authority to do what it has no power to do so under the law. It has no power to make that which is ultra vires, intra vires.
(1) Where goods which were prohibited were mistakenly allowed to be imported. Allowing of importation of prohabiteci goods by mistake could not create any bar from taking action against imports which was prohibited. If the mistake was committed in the past that could not father or create any estoppel for taking action subsequently against such illegal importation.’7
(2) To avoid the crisis of sugar of government issued notification exempting customs duty and sale tax on the import of sugar for a limited period on fulfillment 5of certain conditions and the respondent relying on the notification imported the sugar within the Stipulated period fulfilling the conditions, but before the arrival of the cargo and submission of the bill of entry the government withdrew the
notification of exemption. The appellate division held that the government was esstopped from the denying the right of the importer.
(3) Estoppel by holding out:
Liverpool Finance Ltd. was allowed to constract a building on a certain piot according to the previously sanctioned plan. Company started building the house in accordance with the valid plan. Some neighbour complained againt such construction. Then the company was advised to submit a new plan. The company brought in action against such order issued by the planning officer. It was held that the authority was to be bound by it.
Promissory estoppel cannot be involved to enforce a promise contrary to law.9 This doctrine of promissory estoppel in an equitable doctrine and it must yield when the equity so require.
7. Illegality:
1. Illegality signifies that which is contrary to the principles of law, and denotes a complete defect in the proceedings:
2. Filegality and irregularity:
An irregularity is a want of adherence to some prescribed rule or mode of proceeding and consists in comitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an un reasonable time or improper manner. An “illegality”, on the other hand, is properly predicable of radical defects only, and signifies that which is contrary to the principles of law as distinguished from mere rules of procedure. It denotes a complete defect in jurisdiction or proceedings.
If in the proceedings any principle of natural justice has been violated and if it has resulted in substantial failure of justice, it would be an illegality.
Illegality are encompassed by the doctrine of ultra vires, which has been called, the central Principle of administrative law and restricts a Public authority from acting outside its power.
8. Irocedureal Impropreity:
1. Natural justice
2. Right to reason
3. Rule against Bias
4. Fairness
Introduction:
In a caseLord Diplock explained the doctrine of Procedural improprity” as follows. “I have described the third head (first one is impartiality second one is fairness) as “procedural impropriety rather than failure to observe basic rules of Natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to jurdicial view under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiètion is conferred, even where such failure does not involve any denial of natural justice.
1. Natural justice: (1) What is it:
The expression “Natural Justice” may not be capable of Precise definition. But the bane and fundamental requirements of natural justice are well known and have been repeatedly affirmed by courts of higher authority. Particular forms of legal procedure may not be necessary, but it is of the very essence of an enquiry and decision that the person enquiring must be one without bias and should under the decision in a jurdicial spirit and in accordance with the principles of substantial justice.
The rule against bias is one thing. The right to be heard is another. There two rules are the essential characteristics of what is often called natural justice. The Romans put them into two maxims : Nemo debet esse judex in propria causa, and audi alteram partem which mean – a man cannot be the judge in his own cause and a man can be condemned un heard respectively.
(2) When applies:
There are no wards which are of universal application to every kind of domestic tribunal. The requirement of natural justice must depend on the circumstances of the case, the nature of enquiry, the rules under which it is done, the subject matter that is being dealt with and so forth. One essential is that the person concerned should have a reasonable opportunity of presenting his case.
Principles of natural justice are not inflexible and differ in different circumstances. In applying these principles—’ there is a need to balance the competitive interests of administrative justice and the exigencies of efficient administrative.
These rules apply even though there may be no positive words in the statute requiring application of these rules.
These principle were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision making process would be subject to some rules of fair procedure.
While applying the principles of natural justices the distinction has to be kept in mind, that
1. legislation is the process of formulating general rule of conduct without reference to particular cases and usually operating in future ; on the other hand, administration is the process of performing particular acts of issuing particular order of making decision which apply general rules to particular cases.
(3) When not applicable:
Natural justice is not applicable to legislative acts.
No rule of personal hearing at every stage of a person.
Notice to society will be deemed to notice to all members. Section of an act can not be said to volative of the principles of Natural justice.
4. Some case Law
A. Natural justice
(1) Forfeiture of past service:
Without giving any opportunity of showing course against proposed action for participation in illegal strike. Order of illegal.
(2) Extension of service:
Cancellation of order granting extension of service beyond superannuation if made the retiring employee had no vested right and not entitled to any hearing.’0
(3) Recording of Reasons:
Refusal to record oral evidence does not necessity means contravention of rules of natural justice. 1
(4) Fair play in action — is an important principles of natural justice in the modern administrative law.
(5) Basic facets:
The requirement of natural justice are flexible and can be moulded in such a way to take care of two basic facets of this principle
(a) To make know the nature of accustion;
(b) To give opportunity to state the case.
Natural justice is after all “no unruly horse, no hurking land mine.
(6) Allow sufficient time:
A party must be allowed sufficient time to prepare a case, and must be taken by surprise. Where an adjournment is reasonably needed it must be granted.
(7) Post decisional:
The post decisional opportunity of hearing does not sub serve the rule of natural justice.
(8) Right to report:
Denial of this right would amount to violation of natural justice.
(9) Down gradation of post:
Down gradation of upgraded post without affording opportunity is illegal.
(10) Black-listing
Black-listing of a contractcr can not be done without affording opportunity of hearing to the contractor.
B. Right to reason:
(1) When a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and can not be supplemented by fresh reasons in the shape of evidence or otherwise, otherwise, an order bad in the beginning may, by the time it come to court on account of a challenge, get validated by additional grounds later brought out.
(2) Power of transfer can be exercised only for sufficient reasons and requirements of section is not fulfilled unless there are good and sufficient reasons for such transfer. In some cases power could only be exercised if there are reasons to believe that a certain state of affairs exists.
(3) Statement of reasons is the essentiais ofjustice.
(4) Soul of law:
There is a maxim” Cessante ratione legis cessat ipsa lex:” which means reaosns is the soul of law and when reason of any particular law ceases, so does the law.
(5) Reasoned decisions by tribunals will promote public confidence in administrative process.
(6) Reason – a part of natural justice.
(7) Ajudgement which does not disclose the reasons will be of title assistance to the court.
(8) Arbitrary:
Absence of adequate reasons to justify the order is arbitrary or is liable to be struck down.
(9) Rule of law:
An action taken prejudicially against a person without my reason is arbitrary, irrational and un reasonable. Things which are not based on reason are unreasonable. Reasonableness depends upon relevance of a reason, for particular action.
(10) By public authority:
Non-recording of reason by statutory/public authority! functionary would render the decision arbitrary, unfair and unjust violating the constitution.
(11) Reasons are essentials in the case of —
(a) Adverse remarks
(b) Exemption
(c) Public interest
(d) Selection’
(e) Rejecting application”
(12) Principles of fairness:
Requirement of fairness that reasons for decisions should be given and its is a requirement of fairness in the decision making process is to give reasons in the absence of contrary, statutory intentions.
C. Rule against Bias:
(1) Bias is a one-sided inclination of mind or any special influence that sways the mind.
(2) Jurdicial bias: No man can lawfully be a judge in his own cause. This is a clear rule of law as well as of natural equity and it is rigorously enforced. Hence, if a judge has any interest in the subject-matter of the litigation before him all proceedings will be stayed or set aside unless the parties, with full knowledge of the facts, have waived the objection. 20
(3) ‘Bias’ may be of three kinds, pecuniary, personal and official. Pucuniary —A member of the tribunal having a pecuniary interest in the subject matter of the decision.
(4) Personal – the existence of close relationship between a member of the tribunal and one of the parties.
(5) Official – an abnormal desire to uphold a particular depertmental policy, which would preven an impartial adjudication of the dispute.
(6) Bias is a state of mind in which an adjudicator cannot decide the case impartially. According to Seervai,
Membership ol a public authority or a voluntary association does not make an adjudicator a party to the proceeding and so disquiet— him as adjudicator. but he would be disqualified if he had taken an active part in instituting the proceeding, or had voted for the institution of such proceedings, or had shown partnership in a corporate or private capacity.
(7) Bias of the decision-maker is treated as one of belonging to the catagory of latent want of jurisdiction, as it does not often appear on the face of the proceeding. In most cases it depends on personal knowledge f the parties and if the parties having knowledge of the facts constituting bias participate in he proceedings without raising ojection, the court presumes that the party complaining h as waived his right to object.
(8) A person ca not taken to have waived his right to challenge the authority of the adjudication if he was not aware of the facts constituting bias.
Some case-law:
(1) If a member of Enquiry Committee appearing as witness against delinquent, bias takes place.
(2) Those who have substantial financial interest mt he legal proceeding should not adjudicate the dispute.
(3) A predisposition to decide for and against one party without proper regard to the true merits of the dispute is bias.
(4) Judge as witness is biased.
(5) Adjudgement which is the result of bias or want of impartiality is a Nullity and the trial coram non-judice.
D . Fairness:
(1) Just, fair. and reasonable procedure is an essential in built of Natural justice.’
(2) Three elements of Fairness
(a) No one shall be a judge in his own case,
(b) No on shall be condemned unheard, and
(c) Procedural reasonableness.
(3) Public authority are accountable to people. Public authorities shows justify the action assailed on the touch stone of justice, fairness, reasonableness and as a prudent owner.
(4) Fair hearing