Principles of Judicial Review and Political Questions; Parameters of Constitutional Jurisdiction: by Mr. Muhammad Bashir, Former Judge National Accountability Bureau Court Islamabad --- Part II

Islamabad 23-09-2024: The judicial review is a key tool in maintaining constitutional governance; Mr. Muhammad Bashir, Former Judge National Accountability Bureau Court Islamabad has made dedicated effort to consolidate the research work under the heading “Principles of Judicial Review and Political Questions”. We are publishing this valuable research work in Pioneer Monthly Law Journal of Islamabad “Islamabad Law Reports Islamabad” and the research work is also being published on this website i.e. “Live Law Pk” for the persons who are keenly interested to understand the domain of Constitutional Courts in form of Judicial Review of the Executive Orders. This is second part of above mentioned research work under the heading of “Parameters of Constitutional Jurisdiction”. 

The research work, "Parameters of Constitutional Jurisdiction," delves into key elements of judicial review in constitutional law, focusing on five critical writs under Article 199 of the Constitution: prohibition, mandamus, certiorari, habeas corpus, and quo-warranto. These writs ensure public authorities act lawfully and within their legal scope. The work highlights the High Courts' role in enforcing fundamental rights and discusses the Supreme Court's jurisdiction under Article 184(3) for public interest litigation (PIL).

The research emphasizes the discretionary nature of writ jurisdiction, exploring principles like "clean hands" and the doctrine of laches. Additionally, it examines locus standi and contrasts private interest litigation with PIL, stressing PIL's importance in granting justice to marginalized communities. The doctrine of continuing mandamus is also covered, showcasing how courts ensure ongoing compliance in complex legal issues. The abstract of Chapter is reproduced as under:-

“The research work titled as "Parameters of Constitutional Jurisdiction" discusses various key aspects of judicial review in the context of constitutional law. It primarily focuses on the issuance of five specific writs under Article 199 of the Constitution, including writs of prohibition, mandamus, certiorari, habeas corpus, and quo-warranto. These writs address scenarios where a public authority either exceeds its legal powers, fails to perform its duties, or acts unlawfully. The High Courts can issue these writs to ensure that public officials act within the scope of their legal authority.

Key sections of the Chapter explore the Judicial Review process as a mechanism to enforce fundamental rights. Under Article 184(3), the Supreme Court also has original jurisdiction in matters concerning public importance and the enforcement of fundamental rights. The court's power extends to both individual and public interest litigation, allowing it to address issues affecting citizens’ social and economic rights.

Another important element highlighted is the discretionary nature of writ jurisdiction. Courts may refuse relief if it is inequitable or would cause greater harm than the issue being addressed. The principle of "clean hands" and the doctrine of laches are explored, emphasizing that justice is only provided to petitioners acting in good faith without unnecessary delays.

The Chapter further discusses the concept of locus standi, outlining the criteria for who can file a petition. It contrasts private interest litigation with Public Interest Litigation (PIL), noting that PIL has become a powerful tool to grant marginalized communities access to justice, particularly for issues of public importance.

Finally, the doctrine of continuing mandamus is explained as a means by which courts can maintain oversight over a lengthy or complex situation, issuing a series of ongoing orders to ensure proper compliance with legal duties. The Chapter emphasizes that public interest litigation is collaborative, often involving inquisitorial processes and mediation efforts to achieve solutions that serve the broader public good”

For the interest of legal researchers, the full chapter under the heading of “Chapter 1: Parameters of Constitutional Jurisdiction” is being reproduced as under:-

Chapter 1: Parameters of Constitutional Jurisdiction

1.         Issuance of Five Writs in Judicial Review: The powers of the judicial review are subject to the Constitution. Article 199 of the Constitution empowers the High Court to issue five types of writs. 

When a situation arises that

i). anything is done, which is not permitted by law to do or.

ii). anything is not being done, which is required by law to do or

iii). any act done or proceeding taken is without lawful authority.

If no other adequate remedy is not available to address these situations then on application of an aggrieved party, in the first situation, the Court may restrain the person performing public function within the territorial jurisdiction of the Court from doing a thing by way of issuance of a writ of prohibition. In the second situation, the Court may direct such person to do something by way of issuance of a writ of mandamus. In case of third situation, the Court may declare the act done or proceeding taken by such person as unlawful and is of no legal effect by way of issuance of writ of certiorari. 

A writ of habeas corpus and a writ of quo-warranto can be issued on an application of any person whether he is aggrieved or not. 

In case of a writ of habeas corpus, the Court may direct 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. In principle, the writ of habeas corpus is issued as a matter of right not as a matter of discretion. And availability of other adequate remedy to a person retained unlawfully is no ground for refusal of the relief of habeas corpus. The remedies provided u/s 100 Cr.P.C and 341 / 345 PPC were also not considered as adequate remedies in such a matter. A private individual is also legally not authorized to keep a person who is sui juris in his private custody. ^[[1]] The onus is on the detaining authority to show the lawfulness of its authority and the lawfulness of the manner of detention of the detenue. ^[[2]] 

In case of a writ of quo-warranto, the Court may require a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office. 

A writ of quo-warranto primarily is inquisitorial in nature. So, a petitioner may not be a person aggrieved. Usurpation, or unauthorized grip of a public office can be challenged by any person. Even the High Court can take suo moto action as this writ is like a public interest litigation ^[[3]]. The Constitution itself has provided self-contained provisions of substance of writs without mentioning their names. The word “application” is used in Article 199 of the Constitution, therefore, the contents of the application are taken into account. An application is not liable to be rejected mere on the ground that name of a writ mentioned therein is not corresponding with the contents of the application, or name of the writ is not cited at all in the relief. 

The judiciary is limited by jurisdiction and justiciability. Its powers and jurisdiction are not more than that which are vested in it by the Constitution, or by the law or under the law (see Article 175(2) of the Constitution) and the power of judicial review is expressly made subject to the Constitution. In Article of the Constitution, Therefore, the Court cannot undertake judicial review in certain matters ousted from the jurisdiction of the Court by the Constitution.

2.         Issuance of an Order for Enforcement of Fundamental Rights in Judicial Review: A High Court under Article 199 (1)(c) of the Constitution, may make an order giving such direction as may be appropriate to any person or authority exercising any power or performing any function in or in a relation to any territory within the territorial jurisdiction of the Court for enforcement of fundamental rights enshrined in the Constitution. 

The Supreme Court has original jurisdiction and powers of judicial review under Article 184(3) to examine any legislative or administrative action of the State on touchstone of the fundamental rights and to issue appropriate orders. Yet the jurisdiction of the Supreme Court is subject to two limitations, (i) the matter must involve a question of public importance, (ii) the question must be with reference to the enforcement of Fundamental Rights enshrined in the Constitution.

The words “with reference to” are of great significance. These words are enlarging the scope of jurisdiction of the Court, not only the cases of enforcing the fundamental rights directly, but also the cases with reference to enforcement of Fundamental Rights can be brought to the jurisdiction of Supreme Court. That is why, the matter of enforcement of penumbra rights falls within the ambit of the Court under the Article 184 (3) of the Constitution. 

The public importance of the case is determined on the basis of facts and circumstances of each case. An individual grievance may involve public importance whereas, a case of large number of people may not be a case of public importance. ^[[4]] 

The powers u/s 184 (3) of the Constitution can be exercise suo moto or at the instance of a person who is either aggrieved or not. This power is co-terminus with the power enjoyed by the High Court. Because, this power is conferred in the Supreme Court “without prejudice to the provisions of Article 199 of the Constitution”. 

It depends on the sweet will of the party to choose any forum however, the Supreme Court can take cognizance of the matter only if both the conditions cited above are subsisting. The trappings of Article 199 are not applicable on the power of Supreme Court under Article 184(3) ^[[5]]. 

The serious questions regarding i) effectiveness of the fundamental rights and ii) availability of safeguards of fundamental rights are considered as matter of public importance ^[[6]]. The cases involved interpretation of the constitutional provisions governing the structure, functioning, accountability of the institution of the State are considered of great public importance for example, 

i) the cases involving a process for election, qualification or disqualification of a member of parliament, and powers of legislature are questions of public importance. The rationale behind it is that the enactment made by them may have effect of imposing limitations on the rights of citizens. 

ii) the cases relating to the Executive specially its upper echelon, carrier bureaucrats heading or observing important functions in the government, top officials of Regulatory bodies and Statutory Corporation. The question how it relates to fundamental rights can be answered as policies are framed and enforced by the Executive, which may directly affect the rights of the citizens. 

iii) Questions relating to independence, functioning, appointment, accountability of the Superior Courts are also questions of public importance. Because, the Superior Courts are guardians, protectors, preservers, defenders of the Constitution and the Fundamental Rights enshrined therein. ^[[7]] 

The word “consider” is used in Article 184(3) of the Constitution. It is related to subjective assessment of the Supreme Court regarding determination of question of public importance ^[[8]]. The jurisdiction of the Supreme Court under Article 184 (3) of the Constitution is independent and original one. Pendency of any matter on the same subject before any other forum or existence of a prior decision of any forum below on the same subject matter has no restraining effect on the jurisdiction of the Supreme Court. ^[[9]] 

3.         The Writ Jurisdiction is Discretionary: The writ jurisdiction is discretionary in nature. The court may refuse relief if the relief is inequitable in view of the Court ^[[10]]. This jurisdiction cannot be exercised in aid of injustice. 

It is settled principle of equity that he who seeks equity must come with clean hands (Principle of absolute fairness).

When a petitioner was seeking transfer of evacuee property in excess of his entitlement. The settlement authorities rejected his ‘claim’ though they were not having any such lawful authority and jurisdiction to do so. The relief however was not granted by the Court in writ jurisdiction for the reason that the petition had not come to the Court with clean hands and it would amount to perpetuating an illegality ^[[11]]. The relief can be declined in cases in which greater harm is likely to be caused by giving the relief than the one sought to be remedied as an individual interest is to give way to the collective good ^[[12]]. 

It is also well settled principle of equity that ‘delay defeats equity’. ‘Equity aids vigilant and not the indolent’. The doctrine of laches is emerged from the above cited principles of equity. But this doctrine is not an arbitrary or a technical doctrine. No hard and fast rule has been laid down by the Superior Courts in this regard. It is not equated with statutory bar of limitation. 

Laches operates in equity. The Supreme Court of Pakistan has held that laches per se is not a bar to the writ jurisdiction. The question of laches is to be determined with reference to the facts of each case. Lapse of time / delay in filing of petition is considered most material in certain cases.

Question of laches goes to the bondafide of the petitioner.  A petitioner may be non-suited on the basis of laches if the grant of relief prayed for would cause injustice or on account of negligence of a petitioner, a right has been emerged in favor of other party, or the conduct of a petitioner is of such a nature that it may fairly be regarded as equivalent to a waiver of his right ^[[13]].

An inordinate delay is also not overlooked / ignored by the court. In such a delay a petitioner is required to justify it through satisfactory and plausible explanation ^[[14]]. Delay of nine years with no plausible explanation for dilatory conduct resulted in refusal of the court to exercise its constitutional jurisdiction ^[[15]]. Laches in case of recurring right is to be counted from the last time when the right was infringed. For example when a Circular affecting right to pension was challenged after ten years. It was held by the Supreme Court that pension was a recurring right. The principle of laches was not applied in the circumstances of the case ^[[16]]. 

4.         Adequate Remedy: The relief under Article 199 of the Constitution can be refused by the Court in case of availability of an adequate remedy under the law to petitioner.

The rule is that the other remedy provided by the law must be exhausted before invoking the Constitutional jurisdiction. There are exceptions to this rule such as an order can be impugned directly without exhausting other available remedy if it is entirely without lawful authority, or actuated by malafide of public functionary. Or it is passed in a partial, unjust and oppressive manner. ^[[17]] 

The word ‘adequate’ connotes, an efficacious, convenient, effective, and speedy remedy. A remedy available must be of the nature that it could accomplish the same purpose which being sought under the Article 199. Therefore, a remedy which can be regarded as adequate must be equally convenient, beneficial and effective and must not be less efficacious, more expensive or cumbersome to achieve as compared to that provided under Article 199 ^[[18]]. The question of efficacy is determined in each case on the basis of its facts and circumstances. 

Islamabad High Court has elaborately formulated the principles for entertaining a petition under Article 199 of the Constitution after reliance on various precedents on the subject in Eastern Testing Services (Pvt) Ltd Vs. SECP. ^[[19]]  

1).         The rule that the Court will not entertain a petition under Article 199 when other appropriate remedy is available is not a rule of law barring the jurisdiction of the Court. 

2).        When the law provides an adequate remedy, constitutional jurisdiction under Article 199 of the Constitution will be exercised in exceptional circumstances. 

3).         The exceptional circumstances which may justify invoking jurisdiction under Article 199 of the Constitution when adequate remedy is available or when the order or action impugned is palpably without jurisdiction, malafide, void or corum non-judice. 

4).        The tendency to bypass the remedy provided under the relevant statute by resorting to the Constitutional jurisdiction of a High Court is to be discouraged so that the legislative intent is not defeated. 

5).        Constitutional jurisdiction under Article 199 cannot be readily resorted to when the matters amenable to the jurisdiction of an exclusive forum is mandated by the Constitution itself or when hierarchy provided under a statue ends up in appeal, revision or reference before a High Court or directly the apex Court. 

6).        The High Court is exercising its discretion will take into consideration whether the remedy provided under the statute is illusory or not. 

5.         Locus Standi / Standing: To elaborate the concept of locus standi, nature of litigations before the Superior Courts is to be examined first. The litigations before Superior Court are of two types:

A.        Private Interest Litigation.

B.        Public Interest Litigation.

A.        Private Interest Litigation: A litigation which is motivated purely by own interest of the petitioner (s) is called a private interest litigation. It is sine qua non in such litigation for invoking the writ jurisdiction of the High Court under Article 199 of the Constitution that the petitioner should be an ‘aggrieved party’ or ‘aggrieved person’ except in cases of a writ of habeas carpus or a writ of quo warranto. The Courts do not decide abstract hypothetical or contingent questions or give mere declarations in vacuum. The Courts adjudicate upon a real and existing controversy which is formally raised before it by a litigant ^[[20]]. Moreover, the person who is aggrieved can properly present his case before the Court. Similarly, a writ cannot be issued in absence of a proper and necessary party. Non impleadment of a necessary party makes a writ petition defective and incompetent and is liable to be dismissed ^[[21]]. 

The expressions ‘aggrieved person’ and ‘locus standi’ (standing) both are interlinked and complementary. The aggrieved person having no other adequate remedy available to him can invoke writ jurisdiction. His locus standi in invoking writ jurisdiction is then unassailable. ^[[22]] 

With the passage of time, the Courts has relaxed the requirement of ‘standing’ from the earlier notion of ‘legal right’ to the notion of ‘sufficient interest’ in view of pervasive role of the State in every walk of life. Its actions, policies and laws affect the individuals to multiple ways. Now, a person can be an aggrieved person within the meaning of Article 199 of the Constitution, by a decision which has wrongfully deprived him of something or wrongfully refused him something for which he is legally entitled ^[[23]]. It is elaborately explained by the Supreme Court in Fazal Din’s case. Wherein it has been held, 

“the right considered sufficient for maintaining a constitutional petition is not necessarily a right in the strict juristic sense, but it is enough if the applicant discloses that he had a personal interest in the performance of legal duty which if not performed or performed in a manner not permitted by law, could result in the loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise” ^[[24]]. 

Thus the petitioner is required to establish direct and indirect injury to himself and substantial interest in the subject matters of the proceedings. ^[[25]] 

As a corollary, it can be said that sufficient interest test requires that the petitioner must have sustained an injury owing to, an invasion of legally protected substantial interest. Injury should be particularized, it must have affected the petitioner directly or indirectly in a personal way. The injury must be traceable to the impugned action / conduct / decision / inaction. The injury must not be trivial in nature. It follows that any apprehension as to future injury is not sufficient to invoke the Constitution Jurisdiction or a request for anticipatory relief is hit by the doctrine of ripeness (the case is not yet ripen). 

The petition wherein show cause notice was challenged, such petition was held as filed on the basis of an apprehension or a speculation, pre-mature and not ripen for adjudication. And the matter might be mooted. The show cause notice was not considered as an adverse order ^[[26]] On the contrary, a show cause notice which is palpably unlawful, without jurisdiction and totally non est, and issued to harass the petitioner, can give rise to the call of action and liable to be nipped in the bud. ^([27]) 

The vires of an Act ex-facie discriminatory can be impugned without demonstrated actual proof of discriminatory treatment. What is taken into consideration by the court is the language of the impugned Act, which is sufficient to give a cause of action to challenge it. ^([28]) 

B.        Public Interest Litigation (Pro-Bono Publico): Public Interest Litigation is an innovative strategy and a powerful tool to provide easy access to justice to the weaker, poor, down-trodden, marginalized section of the community for securing their social and economic rights especially of public importance. It is justice for all. The Superior Courts felt themselves as duty bound to protect the fundamental rights of the citizens in exercise of their jurisdictions under Article 199 and Article 184(3) ^([29]). 

This unique remedy is the hallmark of a welfare State to promote and protect larger interest, public good, and welfare of the general public. The court considers non-intervention in matters of public concern as abdication of its authority. ^([30]) 

While interpreting 184(3) of the Constitution, inspirations must be received from the triad of provisions namely Objective Resolution (Article 2-A of the Constitution), Fundamental Rights and the directive principles of State policy, so as to achieve democracy, tolerance, equity and social justice according to Islam ^([31]).

Two situations may arise 

(i). When actions of the Executive, Legislature and Judiciary are unlawful and having adverse effects on the public at large. Any member of the public, or a practicing lawyer can challenge such actions ^([32]).

(ii). when public functionaries fail to perform their duties relating to welfare of public at large, any person can seek relief for himself as well as for general public ^([33]). Access to justice is not declined to bring the matter of unlawful actions of the public institutions with purpose to maintain the rule of law. No free hand to act without fear of judicial review is given to them. Therefore, the actions of public functionaries are kept under judicial review.  ^([34]). 

A simple letter, telegram or an article in a newspaper make suffice for initiation of proceedings. Socio-economic Rights can be addressed through public interest litigation. 

The Supreme Court of Pakistan in Watan Party Case ^([35]) held, ‘it is permissible for the next friend to move the court on behalf of a minor or a person under disability or in restraint then why not a person, who were to act bonafide to act as a court for the enforcement of Fundamental Rights of a group or a class of persons who are unable to seek relief.’ 

In SP Gupta Vs. Union of India, AIR 1982 SC 149. Indian Supreme Court has also held that “when it is permissible for the next friend to move the court on behalf of a minor or a person under disability – why not then a person if he works to act bonafide actives a court for the enforcement of fundamental rights of a group or a class of persons who are unable to seek relief from the court for several reasons.” 

In Mst. Ameer Bano case ^([36]) the High Court issued suitable directions in public interest litigation to alleviate miseries of a large number of citizens due to complete breakdown of sewerage system and to secure their rights under Article 9 with regard to protection of the life from diseases and inconvenient. 

The High Court in public interest litigation had also issued appropriate directions for abolition of slavery, bonded labor, a child labor. ^([37])

Inquisitorial Proceedings in Public Interest Litigation: The proceedings in public interest litigation are inquisitorial in nature and free from all technical trappings. The relation between the parties is not of combat as in adversarial system. The Court may even delve into fact finding and may ask from parties or a third person for relevant and reliable evidence ^([38]). The Supreme Court itself determines the contours of the procedure to regulate its proceedings. 

The Court steps out of its passive role to take active role in investigating the facts. The Court may appoint commission. The report of the commission may be used to determine as to whether the petitioner has a prima facie case in his favor or not. Locus standi in such litigation is greatly diluted, it carries only cosmetic significance. ^([39]). The volunteer or public spirited person may sue as a representative on behalf of the poor and oppressed who are unable to appear before the Court directly due to many factors including their disability, or their social and economic status in the society. However, a volunteer - petitioner has to demonstrate his complete bonafide to the effect that the litigation is for public interest, good, and welfare and not to serve the private interest. It is held in Wattan Party case that ‘any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provisions of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provisions.’ ^([40]). 

In inquisitorial proceedings, material / documents and circumstances which are not disputed against each other are to be considered. Final determination to civil liability and criminal culpability is to be made by the forum empowered under the law by following due process as defined in Article 4 and Article 10-A of the Constitution. ^([41])

When the allegation was that the political party at issue was a foreign aided party. It was inter alia concluded that such allegation could be leveled under Art.15 of the Political Parties Order 2002, only by the Federal Government for its validation on a reference made to Supreme Court. It is a duty of Election Commission of Pakistan to scrutinize the account of political party on the touchstone of Art. 6 (3) of the Political Parties Order 2002 read in light of Art. 17 (3) of the Constitution. It was also observed that it was not proper for the Supreme Court to bypass the mandate of Political Parties Order 2002 making it redundant and nugatory by exercising jurisdiction of Article 184 (b) of the Constitution to peremptorily adjudicate the petitioner’s objection. Primary facts were to be determined first by the competent fora. ^([42]) 

Public Interest Litigation is Collaborative in Nature: In Shehla Zia case ^([43]) the proceedings were initiated on receipt of letters from citizens against construction of grid station. A large number of citizens were being exposed to hazards of electromagnetic field and all of them could not make such representation due to their ignorance, poverty and disability. The Court while holding that under Article 9 of the Constitution, citizens were entitled to unpolluted environment, and the protection from being exposed to hazards of electromagnetic field, took up the matter in public interest litigation as the matter involved was affecting the life and health of citizen at large. It was observed that the Court could prohibit the functioning of such unit creating pollution and environment degradation. Instead of it, the Court preferred to perform as mediator and moved the parties towards agreement. With the consent of both the parties, the commission was appointed to examine and study the scheme, and suggest variation in the plan for minimizing the danger. The Court also structured the discretion of the authority to be exercise with rationality and responsiveness to select appropriate means to achieve desired ends and the authority was sensitized to relevant values and interests. The Court further directed that rules of prudence and precaution be observed and issuance of public notice in newspaper, radio and television before initiating such project was made mandatory. The project was to be finalized after hearing the objectors and giving due consideration to their objections. This shows that public interest litigation is collaborative in nature. 

Public interest litigation before the High Court has been judicially recognized, though the Court is not strictly empowered under Article 199 (1)(c) of the Constitution to proceed in such litigation simply on the application of a public spirited person, or on the aggrieved person for his grievance and as pro-bono publico ^([44]). A public spirited person is allow to bring to the notice of the Court a matter of public importance before the High Court. ^([45])

Doctrine of continuing Mandamus: Continuing mandamus is a procedural innovation of the writ of mandamus. It consists of series of ongoing orders issued by the Court over a period of time, directing an authority to perform its statutory functions or duties. This happens in a situation which can be remedied instantaneously but requires a solutions over a long period of time. The Court does not dispose of the case in finality but it is kept pending and the case is resurrected whenever needed over the duration. The Court itself supervises the compliance of its orders by seeking periodic reports from authorities regarding implementation of its orders etc. ^([46]) 

Powered by Froala Editor