Do Civil Courts Have Power Of Judicial Review?

DO CIVIL COURTS HAVE POWER OF JUDICIAL REVIEW DO CIVIL COURTS HAVE POWER OF JUDICIAL REVIEW? By Muhammad Masood Asghar1 Civil Judge, Punjab Abstract This paper attempts to highlight that power of judicial review is not limited to superior constitutional courts in Pakistan. Civil Courts have effective power of judicial review of administrative and legislative actions/acts. Acquaintance with this power can give poor litigants a cost effective remedy at local level. Nature of the power and grounds of action for judicial review before civil courts are stated. Generally judicial review means scrutiny of some administrative or legislative action/act by a court on touchstone of law. Word law is significant as it includes constitution, sub-constitutional legislation and settled principles of law such as principles of natural justice. Courts exercise this power as the most important manifestation of rule of law. It is perceived as practical aspect of rule of law. Alexander Hamilton2 said about importance of judicial review: " ..Without this, all the reservations of particular rights or privileges would amount to nothing."3 Every written constitution contains specific limitations on powers of executive and legislature. Power of judicial review helps keeping the legislature and the executive within the sphere allotted to them by constitution. Marbury v Madison4 from US jurisdiction is regarded as foundational in establishment of concept and power of judicial review. Before 1962 Constitution, High Courts exercised writ jurisdiction styled in traditional Common Law names; Mandamus, Prohibition, Certiorari and others. In 1962, those names and technicalities attaching therewith were done away with. Article 98 was inserted. It conferred the power that is known as 'judicial review'. Current Article 199 is successor of said article. Our High Courts can direct a person performing functions in connection with affairs of the Federation, a Province etc. to do something he is required by law to do, or not to do a thing he is prohibited by law to do or to declare an act of such a person to be without lawful authority or of no legal effect. Similar powers vest in Supreme Court under Article 184 where a question of public importance is involved with regard to enforcement of fundamental rights. There is not a great deal of conceptual clarity as to whether civil courts also have the power of judicial review or not? This paper attempts to answer. Before Partition, only three high courts---at Calcutta, Madras and Bombay had authority to issue writs. Other High Courts had no such power. In those areas acts of executive were still challenged by approaching civil courts. Now that High Courts have power of judicial review, it may be argued that power of judicial review of civil courts has been taken away by necessary legal intendment. For the reason that constitutional jurisdiction is simply superior to any authority conferred by ordinary legislation.5 However a study of law shows otherwise. Most of us know that Civil Courts have ultimate jurisdiction under section 9 of C.P.C.6 to try suits of civil nature unless barred in express or implied terms. No bar exists either in Constitution or C.P.C. against civil court's powers of judicial review. In Saiyyid Abul Maudoodi case7 Supreme Court held that there is nothing in Article 98 (current Article 199) which enables a High Court to pass orders of the nature of mandamus, prohibition and certiorari which ordinary Civil Court could not pass. In this ruling Supreme Court equated Civil Court's power to grant mandatory and prohibitory injunctions under sections 54 and 55 of The Specific Relief Act and its power to grant declaration under section 42 of said Act with power of High Court to grant writs of mandamus, prohibition and certiorari. In Abdul Rauf v. Abdul Hameed Khan8 Supreme Court held: "The question as to whether the act of an executive or administrative officer or quasi judicial or judicial tribunal is without jurisdiction; illegal and not binding on a party, being a matter of a civil nature, is always to be decided by the Civil Courts except to the extent to which such jurisdiction may have been taken away." In this case there was mention of civil court's power to declare illegal even an order of judicial tribunal. In this context it is worthwhile to note that special judicial tribunals have no authority to determine facts on the basis of which they exercise jurisdiction.9 If they do so Civil Court can step in and correct the wrong. That is done under its power of judicial review. To highlight powers of Civil Courts further, reference to Hamid Hussain v. Government of West Pakistan10 may be advantageous, wherein it was held: "that even where the jurisdiction of civil courts is barred and conferred upon special tribunals, civil courts being courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide." Again in Province of Punjab v. Haji Yaqoob Khan11 Supreme Court held that if order of a statutory authority violated law, it was civil court's job to declare it as without jurisdiction or mala fide. In Chief Settlement Commissioner v. Muhammad Fazil12 Supreme Court, while laying down modes for setting aside executive action, held as one of such modes to be " .. regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order." All these verdicts came after High Courts had power of judicial review, so these go a long way in showing that power of judicial review exist in Civil Courts of Pakistan. Grounds of Action Following may form basis of an action for judicial review before a civil court: 1. Breach of Law Executive/administrative authorities are under an obligation to act in accordance with law. In words of Lord Denning: "When Parliament sets up a Tribunal, it does so in the belief that it will decide cases in accordance with law and not contrary to it. So much so that it may be said that it is a condition of the grant of jurisdiction that it should decide according to law."13 This duty includes that: " ..public authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute.14 If an executive authority misdirects itself in law and the requirements of law are not fulfilled, a case for judicial review may be made out. 2. Mala Fide Acts Normally statutes intend to achieve a particular purpose by use of discretion by some public authority. When the discretion is exercised not to attain the purpose intended by the Act but for some other personal or ulterior motive, it is termed as mala fide act. A mala fide act is, of essence, without any legal authority as it is a fraud on statute.15 Where proceedings are based on mala fide and statute is used as a cover, the action cannot sustain.16 Civil Court's jurisdiction with regard to mala fides can never be taken away.17 Saving provisions do not save acts tainted with mala fide.18 In a leading case19 on the subject of ouster clauses Supreme Court of Pakistan held that: "....where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute". Mala fide exercise of power is also one of the grounds for exercise of power of judicial review. 3. Violation of Natural Justice Administrative authorities are under further obligation to ensure procedural propriety by observing principles of natural justice. Principles of natural justice are to be read into every statute and considered integral part of law unless a statute clearly bars their application.20 Rule against bias and right to be heard are the two main components of what we commonly understand as natural justice. First, a person, whether sitting in judicial or administrative capacity, is disentitled to hear a case if he has some pecuniary interest in the matter or has some bias against one of the sides.21 Secondly, right to hearing includes an opportunity for the person proceeded against to know the nature of allegation and material against him and then an opportunity to controvert it.22 In Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority23 suit challenging cancellation of allotment of plot was dismissed for want of jurisdiction by civil court and the verdict was upheld till High Court. However Supreme Court ruled that when an order was passed without affording an opportunity of hearing the order would not be immune from judicial review power of civil court. 4. Irrationality Obligation on the part of public authority to act reasonably was first laid down in England in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation24; also known as wednesbury rationality test. It said that public authority must exercise discretion reasonably---in this sense, that it must not be so unreasonable that no reasonable authority could have reached it. This test is criticized on ground that it is too wide and therefore capable of misuse but it is applicable in Pakistan. It was applied in Pakistan in Dr. Akhtar Hassan Khan case25, Dada Mir Haider Khan case26 and Gadoon Textile Mills case27. So, if an executive officer reaches a decision that is so unreasonable that no reasonable person of ordinary prudence would reach it, such irrationality can form basis of exercise of power of judicial review by civil court. Nature of the Power Power of judicial review is different from that in appeal in the sense that court exercising this power does not and cannot replace itself with the primary decision maker, as is done in appeal, and is concerned only with limited question of legality or `vires' of order under challenge, as a secondary decision maker28. As a general rule in revenue matters an administrative order may be challenged in a civil suit after availing and exhausting departmental or other remedies provided by the statute such as appeal, revision or review etc. However when such an order is challenged as illegal and without jurisdiction; in judicial review/ supervisory jurisdiction of civil court, it is not necessary to first avail such alternate remedies.29 Judicial review, it is held, is a collateral challenge.30 Even where there is a right of appeal against an administrative order but for some reason no appellate forum has been constituted, resort can be had to civil court on ground of illegality.31 If executive officer acts within limits of its legal authority, civil court would have no jurisdiction but if its order is not in accordance with law and therefore void or mala fide, civil court's power of judicial review will come into play.32 That power of civil court has been upheld even against express provision barring jurisdiction of court.33 Judicial Review of Enactments Civil Courts' power of judicial review is not restricted to executive actions. Positive law is no exception. In H.A. Rahim and Sons (Pvt.) Ltd. v. Province of Sindh34 vires of certain provisions of Sindh Finance Act, 1996 and Sindh Development and Maintenance of Infrastructure Fee Rules 1994 were challenged on account of their repugnance to constitution. Sindh High Court held categorically that challenging the vires of law would be a matter of civil nature which would come squarely within the parameters of section 9 Code of Civil Procedure 1908. High Court held that there was no bar against institution of such suit either in constitution or C.P.C. In case titled Chief Administrative of Auqaf v. Pir Rashid-ud-Daula and others35 Lahore High Court maintained that "jurisdiction to determine whether or not a law was valid is vested in all courts and if it had not been their position would have been unenviable." This power was upheld even against an ouster clause contained in Martial Law Order No. 82. Similarly, in Mirpurkhas Sugar Mills Ltd. v. Consolidated Sugar Mills Ltd.36 Sindh High Court held that: "Challenge to any law on the ground that it is inconsistent with Fundamental Rights conferred by the Constitution can validly be raised in a civil suit. Such challenge is not confined to be made only in a constitutional petition." In this case it was observed that power of declaring any law as repugnant to fundamental rights secured by constitution under Article 8 is not restricted to only High Courts under Article 199 and it can be exercised by civil court as well. In Malik Khizer Hayat Tiwana v. Punjab Province37 Lahore High Court held that when court cannot grant a declaration of right of plaintiff without first declaring an Act as ultra vires, it may do so. In this case some amendments in The Canal and Drainage Act, 1873 and The Punjab Minor Canals Act, 1905 were declared as in excess of legislative powers of provincial legislature and bad in law. In Pakistan, enacted laws can be challenged on grounds of their repugnance to fundamental rights secured by Constitution or their conflict with Islamic law, which is supreme law of the land. On former ground an action can be brought before Civil Court depending on existence of some civil legal right in challenger, besides action before Superior Courts, whereas latter ground is within the exclusive domain of Federal Shariat Court under Article 203-D of Constitution. In Pakistan most of the litigants do not have the financial muscle to take their grievance to superior courts that are quite often located far off from their abode. If they and local lawyers are acquainted with the state of law, it may benefit them greatly that they can bring action locally and conveniently.