SCOPE OF JUDICIAL REVIEW
(PAPER PRESENTED TO THE THIRD COMMONWEALTH & EMPIRE LAW CONFERENCE HELD IN SYDNEY (AUSTRALIA) FROM 25TH AUGUST TO 1ST SEPTEMBER 1965 BY A.K.BROHI)
The position under the British Constitution is often summed up by the employment of a phrase which has acquired a well known connotation: In England, it is said, there is the `rule of law’. By that phrase is meant the idea that the existence or non‑existence of a justification to do anything by a public functionary is a matter that can be decided solely by appeal to some statute or some judicially decided principle. Even the existence of a necessity does not constitute any sufficient justification for resort to the exercise of a power or fulfilment of a duty which cannot, strictly speaking, be said to flow either from a statute or precedent. In the case of extreme urgency, however, when the ordinary law of the land cannot function; there is the common law right in the public authority to repel force by force and to do all acts necessary to bring back order to prevail in the country and thus secure normal functioning of government machinery, but even these have to be protected by the eventual passing of Acts of Indemnity by the Parliament. The extent to which the private rights of individual are jealously guarded even in cases of necessity is well illustrated by the Burmah Oil Co.’s case (1964) 2 All. E R 348, in which retrospective legislation to overcome a finding that compensation was due to the Burmah Oil Company in respect of `denial’, damage is the subject of active debate . . . . . . On the day before the Japanese entered Rangoon, the company’s installations were destroyed on the orders of Lord Alexander. The Crown throughout took the view that no compensation was payable. The Company, however, instituted proceedings in the Scottish Courts (it is registered in Scotland) and ulimately in the House of Lords the verdict of the trial Court in favour of the company was restored and that of the C. A. reversed. On April 13, 1965, a War Damage Bill was passed by the House of Commons was rejected in the Lord’s (acting in a legislative capacity). The Commons have thrown out the Lord’s amendment and ultimately the Bill is likely to become law, but the long battle in Courts and the controversy it bad evoked illustrate the vigour with which the rights of private citizens are guarded. Lord Devlin, writing in the Sunday Observer, May 16, 1965, has gone so far as to say: “If this Bill becomes law, it will shatter the simple belief that we in‑ Britain are blessed among nations in that we do not have to rely for our liberties upon the provisions of a written constitution since they are enshrined for ever in the hands of the governors as well as the governed.”
Important liberties of, the British subjects have been set forth in paragraph 437 of Volume VI of Halsbury’s Laws of England (Second Edition) where it is stated that the most important liberties are the following:
“(1) The right of personal freedom, or immunity from wrongful detention or confinement, which is ensured by action of false imprisonment and by the writ of habeas corpus, reinforced by the Habeas Corpus Acts, under which,, upon probable cause being shown by an affidavit, either of the prisoner himself, or of some other person on his behalf, a writ may be obtained directing the person having charge of the prisoner to produce his body before the King’s Bench Division, in order that the reason of his detention may be inquired into.
(2) The right of property, which is protected by various proprietary and delictual actions, in particular the actions of trespass quare calausum fregit, and of trespass de bonis asportatia.
(3) The right to freedom of speech or discussion, which means that any person may write or say what he pleases, so long as he does not infringe the law relating to libel or slander, or to blasphemous, obscene or seditious words or writings. This right is closely connected with and covers that of freedom of conscience.
(4) The right of public meeting which means that persons may meet together so long as they do not thereby trespass upon private right of property, or commit a nuisance, or infringe the law relating to public meetings or unlawful assemblies.
(5) The right of association, which arises from the fewness of the restrictions on the making of ‑ contracts and the constitution of trusts, from the ease with which companies can be formed under the Companies Act, and trade unions under the Trade Unions Act, and from the laxity of conspiracy.
These rights and liberties are not guaranteed by any fundamental law of the realm if only because there is nothing like fundamental law as opposed to ordinary law within the frame‑work of the English Law of Constitution.
“Safeguard of British liberty” as was observed by Lord Wright in the case of Liversidge v. Sir John Anderson and others(1942 A C 206) “is in the good sense of the people and in the system of representative and responsible government which has been evolved”. To the same effect are the observations of Prof. Dicey:
“There is in the English Constitution an absence of these declarations or definitions of rights so dear to foreign constitutionalists. Such principles, moreover, as you can discover in the English constitution are, like all maxims established by judicial legislation, mere generalisations, drawn either from the decisions or dicta of judges or from statutes which., being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament.” (See Dicey’s Law of the Constitution, (1952 Ed.), p. 197).
The British Courts avowedly have not the authority to protect the people from the encroachments made by Legislature upon the “inalienable rights” of life, liberty, property and pursuit of happiness” as the American Courts to a limited extent are wont to do. Under the British system of government, the general idea is that Judges have no control over the policy of Parliament except when they are called upon to decide between two conflicting claims to legislate advanced by the regional and national governments in a federal system and that too strictly to determine the question of their respective fields of legislative competence by applying the doctrine of ultra vires.
It is inherent in the nature of things that human rights are incapable of a clear‑cut formulation and no code defining the rights of the citizens can afford to omit mentioning numerous specific qualifications subject to which that right is available. Prof. Wheare illustrates this dilemma by referring to the provisions of the constitution of Ireland. That constitution, it would be recalled, contains a series of Articles‑Nos. 40 to 44‑enunciating fundamental rights. Prof. Wheare goes on to remark;
“Consider this statement first: ‘No citizen shall be deprived of his personal liberty save in accordance with law’ and then points out: “A little later there follows the following qualification: `The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law, and raises the question:’ What does this guarantee amount to? The answer must be: `It all depends on the law.’ If wide discretionary powers of arrest and forcible entry are given by the law to the forces of the State, then the right of the citizen will be severely restricted.” (See his “Modern Constitutions” p. 57).
I have in the foregoing traversed those substantive provisions of the written Constitutions of United States of America, India and Pakistan which have reference to Bills of Rights they have guaranteed to their subjects in an endeavour to show that, in so far as these provisions guarantee justiciable rights, the province of judicial review necessarily extends to the task of applying some vague and ill‑defined terms and phrases with a view to ascertaining whether in a given case the guarantees furnished by the Constitution are at all applicable. In the British system of jurisprudence, preservation of these rights is secured by an independent judiciary interpreting statutory law in such a way as to make it consistent with the eager maintenance of the rights of the individual to life, liberty and property. As a matter of fact, the grounds on which judicial review of administrative action is available in England, as also in Canada and Australia, practically cover the same field as is available in a system of jurisprudence which guarantees fundamental rights.