Judicial review is the means by which the Superior Courts of a country exercise a supervisory jurisdiction over inferior courts, tribunals or other public bodies. It is a specialised remedy in public law. The distinction between public and private law is not easy to draw. Many have doubted the utility or even existence, of such a distinction.
There remain, nonetheless, broad considerations of policy justifying the creation of a separate regime for certain grievances against public bodies. Most notable, perhaps, is the desirability of protecting administrative decision-making from vexatious litigants and delay.
In reviewing a particular decision the court is concerned to evaluate fairness. The essential function of judicial review (albeit in the context of natural justice), was well put by Lord Hailsham L.C. in the Chief Constable of North Wales Police v. Evans1 where he stated:
"It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question." The courts thus exercise control by making one or more of three prerogative orders, namely certiorari, prohibition and mandamus.2
The general grounds on the basis of which judicial review can be sought are:
(i) Illegality;
(ii) Procedural Fairness; and
(iii) The unreasonable exercise of power.
As regards illegality as understood analytically, illegality is a discrete head of judicial review and is founded on the closely related principles of ultra vires and irrelevancy.
Examples of ultra vires doctrine in operation include the following:
a) Minister's refusal to refer a complaint to a committee of investigation;
b) Suspension of an underwriter contrary to law
As to irrelevancy it may be observed that a court is entitled to investigate the action of the local government with a view to seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account matters which it ought to take into account.
Procedural impropriety and unreasonable exercise of power consists of:
a) Bias;
b) The right to knowledge of the opposing case;
c) Fair opportunity to answer the charges;
d) Fair hearing;
e) Duty to give reasons;
f) Legitimate expectation
g) irrationality
In this background, this article examines the judicial review of administrative actions relating to fiscal laws. An effort has been made to update the reader in respect of the current view of the apex court in major issues relating to judicial pronouncements in this regard.
The Constitution of Pakistan provides for judicial review of administrative actions in Article 199, by the High Court and Art 184 and 185 by the Supreme Court. Article 184 can be invoked only against violations of the fundamental rights and Article 185 is supposed to be restricted right of appeal. Article 199 becomes the main provision of judicial review of administrative actions.
Judicial review of administrative actions is a normal function of the courts. Our superior courts have laid down general principles regarding judicial review and availability of remedies. Some of the leading principles are summarised below:
(i) The alternate remedy must be efficacious and where not, resort to that remedy would be immaterial;
(ii) Where actions are without jurisdiction, it is not necessary to avail alternate remedy;
(iii) Where legality of an action is being challenged, the remedy is a constitutional petition.
(iv) An illusory remedy is no remedy;
(v) Where the course of departmental remedy has been adopted, writ jurisdiction will not be available.
(vi) Where the impugned actions are completely without jurisdiction, unlawful, mala fide and void, it is not necessary to avail alternate remedies. The Supreme Court has in this regard interpreted the fiscal laws, and the prime principles laid down by the apex court are:
(a) Where an assessing officer acts under the dictates and control of his superiors, his actions would be open to review through a constitutional petition. This view was confirmed by the supreme court in the Gatron Industries Case.3
(b) Availability of a revision as a course of action has not been considered as an alternate remedy. This view was confirmed by the Supreme Court in Hussain Bibi's Case.4 The view has been re-affirmed in the case of Coll of Customs vs SM Ahmed.5
(c) Where through an executive action an illegal notice is issued, the curative remedy is a writ petition. This view was confirmed by the Supreme Court in the Eiduljee Dinshaw Case.6 The view has been further re-affirmed in Central Insurance Case.7
In matters of fiscal statutes, the courts entertain writs to interpret law so as to define the legality and fairness of action being taken by the administrative authority. A jurisdictional error was thus treated as cognizable in a writ in the Utility Stores Corporation Case.8
Another important issue was decided by the Supreme Court in Khyber Electric Lamp Case,9 that is, where a notice contains vague allegations, the same is illegal and can be challenged through a writ. The view was further re-affirmed in the Caltex Case10 where the court observed that the show cause notice carrying the defect of vagueness may not stand the test of judicial scrutiny.
In Al-Shamreze Case,11 it was observed that once a contract stand finalised, the parties to the contract derive a vested right to be treated in accordance with the terms of the contract, though the later judgements in Molasses Trading12 and M.Y Electronics13 portray a different reasoning after changes were made in the law.
These important judgements show that how the courts keep the needs of time in mind. (The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates)
1. [1982] 1 W.L.R 1155.
2. See Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. 1999 SCMR 1072.
4. 1976 SCMR 395
5. 1999 SCMR 138: The Sindh High Court in Tharparkar Sugar Mills Case (1996 MLD 1220) had taken this line of reasoning.
6. 1990 PTD 155: This distinction is more pertinently brought out in two judgements from the Indian jurisdiction ie Banarsi Dass and another v. Income Tax Officer (1962) 46 ITR 633 (Punj.) and Mohindra Mohan Sirkar v. Income Tax Officer (1978) 112 ITR 47 (Cal.). In the first case it was held that the Indian Income Tax Act itself provided remedies for wrong assessments and once the assessees chose to prefer his remedies under the Act, he could not invoke the extraordinary jurisdiction of the High Court for the issuance of a writ.
It was further observed that reassessment proceedings could not be challenged in writ proceedings where the Income Tax Authorities had already assumed jurisdiction and assessment orders had been passed; mere was a clear distinction in this respect between cases in which an assessee moved the High Courts under Article 226 of the Indian Constitution (equivalent to our Article 199) immediately after receipt of notice under section 34 (equivalent to section 65 of 1979 Ordinance) and where he waited till the assessing authorities had made assessments. It was held that in case where the notice was immediately challenged the petition would lie.
In the second case, it was held that the Income-tax Act did not contain any provision for any remedy which the petitioner had sought under Article 226; it was not possible to accept the contention of the revenue that if the assessment was reopened and an order of assessment was passed, the appellant could have appealed against the order and, in that appeal, he could have questioned the jurisdiction of the Income Tax Officer to issue the impugned notice, and therefore, the appellant had an alternate remedy. It was observed by the Court that the petitioner had challenged the jurisdiction of the Income Tax Officer to issue the impugned notices under section 148.
The remedy referred to in Article 226(3) contemplated an immediate remedy for the redress of the injury complained of and not a remote or far-fetched remedy. The injury complained of was the reopening of the assessments and not the assessment order that were to be passed after the assessments were reopened. There was no remedy in the Income Tax Act providing for the redress of the injury that would be caused to the petitioner, if the assessments were allowed to be reopened and the proceedings cancelled, the petition was found to be maintainable:
7. 1993 SCMR 1232.
8. PLD 1987 SC 447.
9. 2001 SCMR 838.
10. 2005 PTD 480.
11. 1986 SCMR 1917.
12. 1993 SCMR 1905.
13. 1998 SCMR 1404.