SCOPE OF JUDICIAL REVIEW Part 3
(PAPER PRESENTED TO THE THIRD COMMONWEALTH & EMPIRE LAW CONFERENCE HELD IN SYDNEY (AUSTRALIA) FROM 25TH AUGUST TO 1ST SEPTEMBER 1965 BY A.K.BROHI)
OPERATION OF A POLITICAL PRINCIPLE
The peculiar advantage which is gained by providing for judicial review of legislation is to high‑light the operation of a political principle‑the device to save the rights of individual from being taken away by brute majorities in the Legislature or by the unrestrained enthusiasm of over‑zealous Executives. It is the contemplated failure of politics‑absence of healthy, constructive and honest politics‑which occasions the need for a Bill of Rights as a brake upon the vagaries of irresponsible politicians who may happen to find themselves in a majority in the Legislature or in charge of the operation of governmental administration of public affairs. For instance, one of the most important consideration which inclined the framers of the Constitutions of India and Pakistan to include fundamental rights in their respective Constitutions was that in those countries one has to deal with pluralistic societies where there are religious denominations and minority communities living side by side with the ruling majority community professing allegiance to a .religious way of life and it was necessary to provide in the circumstances some manner of guarantee against which the will of the Legislature and executive rule by the majority party may not prevail. There is no better guarantee against executive and legislative encroachments of the “inalienable” rights of individual citizens, particularly where the democratic tradition is not well settled in the way the body‑politic of a country operates, than the inclusion of specified fundamental rights in the Constitution of that country.
“The very purpose of a Bill of Rights” says Mr. Justice Jackson “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by Courts. One’s right to life, liberty and property, to free speech and a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election.” West Virginia State Board of Education v. Barnette. (1943) 319 U S 624 at 638
Some historians of legal institutions of mankind have also attempted to justify the assumption by Courts of the power of judicial review of legislation on the ground that the ‘written’ Constitutions are not, speaking generally, easily amendable in view of the special procedure prescribed for their alteration. The Courts by resort to interpretative functions do the best they can, consistently of course with the letter and the spirit of the Constitution, to deliver a final opinion on questions that cannot wait till the Constitution is amended.
The objection is often taken that the power of judicial review, particularly in the sphere of effective application of the due process clause, is indefensible, in that, under its garb, the higher law is virtually, at least in the economic sphere, often invoked to conserve business interests of the dominant class in society. To this objection it is a sufficient reply to say that this is something that is unavoidable, having regard to the fact that the business activity, like any other activity in the State, must be spared the ravages of indiscriminate and rash legislative interferences. This is the only way in which economic forces of our time can at all be channelised. Stablised business conditions are necessary if we are at all to have the opportunity of progressing in the economic sphere.
The basis of fundamental rights is grounded in the philosophy which maintains that there is a higher transcendental law which cannot be undone by ordinary legislation. From this it follows there is in existence a graded scale of values which it is the function of the Courts as custodians of the Constitution to invoke and apply in giving effect to the statute law.
If this view is correct, we are in a position to understand the difficulties that must be faced if the constitutional limitations which must, from the nature of the case, be embalmed if static and petrified provisions are to be made applicable to the changing conditions in a dynamic society, for, here is a fertile ground upon which the Judges applying the law are bound to discover the interplay of conflicting axiological notions. Judicial interpretation of fundamental rights, or, as a matter of fact, of any other constitutional limitation upon the State power, is bound to vary with different Judges, if only because the different Judges who are called upon to interpret those provisions, consciously or unconsciously, are influenced by the type of the prevailing economic and social philosophy to which they subscribe. The ruling ideas of the age become a fact in issue every time an attempt is made to interpret those constitutional provisions that cannot be understood without making a reference to them. For instance, when the balance between the interest of national security and the right to individual freedom has to be struck, a line can only be drawn between these contending values in terms of some social philosophy to which a particular Judge might owe his allegiance. This is so because existing economic and political conditions can only be viewed in the light of the scale of value which a Judge places before himself as representing the norms against the back‑ground of which, in his opinion, judicial process must work. It is for this reason that Professor Friedmann in his book ‘Legal Theory’ says:
“Natural law thinking in the U. S. undoubtedly inspired the fathers of the Constitution, and it has dominated the Supreme Court more than any other law Court in the world. Such thinking has not prevented the Court from vacillating, from the unconditional condemnation of legislative regulation of social and economic conditions to its almost unrestricted recognition, from the recognition of almost unrestricted freedom of speech and assembly to the virtual outlawing of a political party, and, on the other hand, from the toleration of the most blatant discrimination against negroes to the strong protection given in recent judgments. Yet the American Constitution gives as near an approach to the unconditional embodiment of `natural’ rights as can be imagined. It is not the weakness or the vacillations of the Court which in the face of such provisions have created so much uncertainty. The generality of `Bills of Rights’ and similar provisions can disguise but not eliminate the conflict of values and interests which is ever present. Neither the Australian nor the Canadian Constitution‑which are more easily comparable to the U. S. Constitution than any other‑contain Bills of Rights, yet the conflict between economic freedom and State regulation, between the freedom of the individual and the power of self‑protection of the State, and other basic conflicts have arisen in much the same manner, though in a different legal form” (Friedmann `Legal Theory’ p.67).
As an illustration of the utter impossibility of avoiding the difficult task of interpreting a Constitutional Instrument (which does not include within its provisions a Bill of Rights) without reference to economic and political background of the time, we might refer to the case of Commonwealth of Australia v. Bank of New South Wales’. Lord Porter, delivering the judgment of the Privy Council in that case remarked upon the relevancy of political; social and economic factors involved in the interpretation of expression like “trade being . . . . . free absolutely”, occurring in section 92 of the Australian Constitution:
“It is generally recognised that the expression `free’ in section 92, though emphasized by the accompanying `absolutely’, yet must receive some qualification. It was, indeed, common ground in the present case that the conception of freedom of `trade, commerce, and intercourse’ in a community regulated by law presupposed some degree of restriction on the individual. As long ago as 1916 in Duncan v. State of Queensland,’ Sir Samuel Griffith, C J. said: `But the word `free’ does not mean extra legem, any more than freedom means anarchy. We boast of being an absolutely free people, but that does not mean that we are not subject to law’. Though all the subsequent cases in which section 92 has been discussed, the problem has been to define the qualification of that which in the Constitution is left unqualified. In this labyrinth there is no golden thread, but it seems two general propositions may be excepted: (1950 A C 235) that regulation of trade, commerce acid intercourse, among the States is compatible with its absolute freedom, and (22 C L R 573) that section 92 is violated only when a legislative or executive act operates to restrict such trade, commerce and intercourse, directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. In the application of these general propositions, in determining whether an enactment is regulatory or something more, or whether a restriction is direct or only remote. or incidental, there cannot fail to be differences of opinion. The problem to be solved will often be not so much legal as political, social, or economic, yet it must be solved by a Court of law. For where the dispute is, as here, not only between Commonwealth and citizens but between Commonwealth and intervening States, on the one hand, and citizens and States, on the other, it is only the Court that can decide the issue. It is vain to invoke the voice of Parliament.”
It is by now admitted on all hands that many of the leading cases in the first decade, after the establishment of the High Court of Australia, arose from challenges, many of them successful, to the fiscal and economic policies of the early Commonwealth Governments. (See the King v. Barger (1908) 6 C L R 41; The Union Label Cases (Attorney‑General for New South Wales v. Brewery Employees Union of New South Wales (1908) 6 C L R 469 Huddart Parker & Co. Proprietary Ltd. v. Moorehead (1908) 8 C L R 330; Owners of Kalioig v. Wilson ((1910) 11 C L R 689); Bootmakers’ cases ((1910)11CLR1 and 311); Osborne v. The Commonwealth and George Alexander McKay (Commissioner of Land Tax)( (1911)12CLR321); The King and the Attorney‑General of the Commonwealth v. The Associated Northern Colleries;( (1912) 14 C L R 387) Adelaide Steamship Co. Ltd. v. The King and the Attorney‑General of the Commonwealths ((1912) 15 C L R 65) and Attorney‑General of the Commonwealth v. Adelaide Steamship Co. Ltd.( (1913) 18 C L R 30)
It is precisely because of the peculiar role of ‑American Supreme Court, regarded as a political institution (and the truth of this observation would be apparent to anyone who cared to study the specific modes in which the Judges of that Court have allowed themselves to be influenced by the prevailing
philosophy of the time and by the nature of the political and economic situation with which the country has been confronted), that Mr. Justice
Frankfurter in his `Some Reflections on the Reading of Statutes’ gives expression to the attitude which must, in his opinion, characterise the approach of those who are charged with the duty of settling questions relating to constitutional and statutory interpretation:
“There are varying shades of compulsion for Judges behind different words, differences that are due to the words themselves, their setting in a text, their setting in a history. In short, Judges are not unfettered glossators. They are under a special duty not to overemphasise the episodic aspect of life and not under‑value its
organic processes‑its continuities and relationships. For Judges at least it is important to remember that continuity with the past is not only a necessity but even a duty.
“There are not wanting those who deem naive the notion that Judges are expected to refrain from legislating in construing statutes. They may point to cases where even our three justices apparently supplied an omission or engrafted a limitation. Such an accusa‑
tion cannot be rebutted or judged in the abstract. In some ways, as Holmes once remarked, every statute is unique. Whether a Judge does violence to language in its total context is not always free from doubt. Statutes come out of the past and aim at the future. They may carry implicit residues or mere hints of purpose. Perhaps the most delicate aspect of statutory construction is not to find more residues than are implicit nor purposes beyond the bound of hints. Even for a Judge most sensitive to the traditional limitation of his function, this is a matter for judgment not always easy of answer. But a line does exist between omission and what Holmes called `misprison or abbreviation that does not conceal the ‑purpose’. Judges may differ as to the point at which the line would be drawn, but the only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive as well as trained, reluctance to do so.”
It would be seen that the American approach is different from the traditional approach with which lawyers and Judges in the Commonwealth countries who are schooled in the British system of legal thought and practice, regard their office when setting out to interpret and apply statutory or constitutional instruments to the solution of questions submitted for their advice or adjudication.
REVIEW OF ADMINISTRATIVE ACTION
The ground on which judicial review of administrative action can be undertaken by regular Courts of law in England as also in most of the Commonwealth countries are fairly well‑settled. Over and above the invocation of the doctrine of ultra vires there are several other grounds upon which review of the legality of administrative action by means of appropriate proceedings can be obtained. The doctrine of ultra vires can be successfully invoked if it can be shown that the administrative agents have done things which are not authorised by the statute. Broadly speaking, the issue raised is always one of legal competence of the recipient of statutory powers to do the thing by which the party claims to be aggrieved. Each time the question is: Is the administrative action within the legal competence of him who has done it? Has he exceeded the authority? The question can be split up into the following 3 components:
(1) Is it shown that there has taken place abuse of the `discretion’ vested in the Administrative Agent for a collateral purpose or has he exercised his power arbitrarily?
(2) Is it shown that the basic conditions with reference to which the existence of power to act could be said to be vested in an administrative agent has been correctly found to exist to the satisfaction of their superior Court?
(3) Has there taken place a non‑observance of statutory procedure of a mandatory character?
If there is any condition precedent’ prescribed by law before legal competence to act is to get vested in an administrative agent, the non‑existence of that condition can deprive the agent in question of his authority to exercise the power assigned to him under law. In such a case, the tribunal cannot be suffered by, the superior Courts, to invest itself with legal competence to do the thing in question by erroneously determining the existence of a condition precedent. These `jurisdictional facts’ are capable of being reviewed by superior Courts since they affect vitally the finding on which the existence of jurisdiction relied on, depends. (See the case of In re Rippon Housing Order((1939) 1 All E R 508) and the earlier cases (1881) 21 Q B D 313 and L R 5 P C‑417). But if, as it sometimes occurs, the very decision as to the existence of jurisdictional facts is consigned to the realm of `subjective satisfaction’ of him who is invested with the exercise of power in question, the Court would precluded from convassing the correctness of that decision‑as distinguished from merely its duty to be satisfied that the donee of power was so satisfied. See Liversidge v. Anderson.( (1942) A C 206)
Similarly, if a person is authorised by the statute to do certain things, in the total absence of the statute enabling him to delegate his powers, he cannot be suffered to entrust to another person the exercise of the power given to him by the statute. The normal rule is that a delegate has no power to delegate: `delegatus non potest delegare’. Should the delegate thus unaathorisedly delegate his power to another, the situation would arise in which the doctrine of ultra vires would be successfully applied. See the case of Allingham and another v. Minister of Agriculture and Fisheries((1948) 1 All E R 780). I Similarly, exercise of power by the administrative, agent for a collateral purpose, that is, purposes extraneous to the one responsible for the conferment of the power oil him, would be struck down by superior Courts as being fraud upon power. All mala fide exercise of power is in the theory of law to be construed as an aspect of the doctrine of ultra vires if only because all constituted authorities are conferred the authority to act subject to the pre‑supposition that the power conferred will be honestly exercised for the purpose for which it has been ,granted (See Sydney Municipal Council v. Campbell((1947) 2 All E R 680). Similarly, the exercise of power by the administrative agent will be condemned as having been invalidly exercised if it be shown that considerations responsible for taking a particular decision are either irrelevant for the purpose or that considerations which are declared to be relevant by law have not been taken into account by the administrative agent. (See Associated Provincial Picture House Ltd. v. Wedesbury Corporation (1925 A C 338).
Violation by an administrative tribunal of principles of natural justice during the course of the exercise of its jurisdiction has invariably been held by the superior Courts to vitiate the order passed by a tribunal. The irreducible minimum requirement of the doctrine of natural justice is that a person about to be affected by the decision has a right to a fair hearing by a tribunal which can be regarded as unbiassed.
In considering whether the proceedings of an inferior tribunal, in respect of which a writ of certiorari would lie, should be quashed, the principal question that arises is whether the principles of natural justice in the determination of the question before it have been followed by the tribunal. Here the superior Court is not concerned so much with notions of abstract justice as to see that certain well known forms of `judicial’ as distinguished from `Court’ procedure are followed by inferior tribunals. It is not necessary that the proceedings must be conducted in accordance with the procedure known to ordinary Courts ‘ of law: if the Act itself prescribes the procedure which a tribunal is required to follow, it would be enough if those formalities prescribed by the Act are observed. But if these are not expressly provided for, the statute would be construed as silently implying the imposition of such a duty upon the tribunal and it would be a valid objection to the proceedings taken before it to show that the principles of natural justice have not been followed.
The speech of Lord Shaw in the famous case of Local Government Board v. Arlidges (1915 A C 120) contains a discourse on `natural justice’ as a term having a vanishing and shadowy texture’. “The words `natural justice”‘ said he “occur in arguments and sometimes in judicial pronouncements in such cases. When a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance, it must still act honestly and by honest means. In regard to these, certain ways and methods of judicial procedure may very likely be imitated; and lawyer‑like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation, and the assumption that the methods of natural justice are ex necessitae those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure of forms of pleading. In so far as the term `natural justice’ means that a result or process should be just, it is harmless though it may be a high‑sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it. is vacuous.”
The doctrine of natural justice in England, like the fickle‑minded dame, the English weather, seems to be dominated by some imponderable element; its limits have been perpetually shifting and its application seems to vary not so much with the much maligned foot of the Chancellor as with the inclemencies of economic‑political climate that come to surround its existence from time to time. The following statement may, however, be regarded as representing the best that can be said of the doctrine of natural justice in England.
“Whether the standard be `natural justice’ or ‘substantial justice’ ” remarks a recent writer, “or what is reasonable and fair, matters very little, so long as the Courts are watchful that individual rights are not trampled upon by the unfettered and arbitrary exercise of powers, and that a man should not be deprived of his livelihood without recourse to a proceeding before an independent tribunal bearing some recognisable resemblance to the proceedings of the ordinary Courts.” (See Natural Justice in English Law by G. W. Keeton in Current Legal Problems 1955 at p. 24; also Wade H. W. R. on ‘Twilight of Natural Justice’ 1951, 67 L Q R 103).
In the recent case of Ridge v. Baldwin,( (1963) 2 All E R 66) the House of Lords in England has imposed a new complexion upon the mercurial face of the muse of natural justice and has inaugurated a new era in the administration of public law in England. All the previous authorities upon the subject of ‘rules of natural justice’, have been reviewed in this case and now lie over‑shadowed by a firm declaration that an officer cannot be lawfully dismissed without telling him what is alleged against him and hearing his explanation in defence, and in so far as a result may be reached in the absence of such a hearing, the decision would be void. The application of the doctrine of “natural justice” so widely interpreted as is reflected in the decision in Ridge v. Baldwin, is now indistinguishable from the way in which due process clause is applied for the review of administrative action in the U. S. A.
Many jurists have regarded the existence of the interest or bias as affecting the very constitution of the tribunal. So viewed, it has been invariably regarded’/ as amounting to a defect in jurisdiction. In the famous case of Frome United Breweries v. Bath Justices (1926 A C 586), Viscount Cave L. C. observed:
“If there is one principle which forms the integral part of English Law it is that every member of a body engaged in judicial proceedings must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to abias (whether financial or other) in favour of or against either party to a dispute, or he is in such a position that a bias must be assumed, he ought not to take part in the decision or even sit upon the tribunal. This rule has been asserted not only in the case of the Court of Justice and other judicial tribunals but in the case of authorities which though in no case could be called Courts, have to act as judges of the right of others.”
Some text book writers and decided cases, on the other hand, lay down that the requirement as to the absence of bias, flows from an over‑all duty of a judicial tribunal to follow the rules of natural justice. It is plainly opposed to the principles of natural justice that a person can be a judge in his own cause or be identified with the interest of one of the parties to the cause he is trying. This view is based upon somewhat controversial position in law that bias does not make the determination of the tribunal necessarily void but only voidable so that there can be a waiver by the party with respect to it. The better view however is to regard bias as materially affecting the jurisdiction of the tribunal to determine the matter.
The expression `excess of jurisdiction’ is somewhat ambiguously used and apparently even the violation of rules of natural justice can be regarded and has been regarded as a form of excess of jurisdiction. Normally, the expression ‘excess of jurisdiction’ should be reserved for cases where a tribunal having competently entered upon a permissible field of inquiry goes beyond its authority and trespasses into fields that are beyond its competence to enter. If the problem posed by such a situation be viewed from the stand point of the result reached, the extent to which a tribunal has clutched at a jurisdiction to dispose of a subject‑matter not within its competence, would appear, with reference to the part of determination which is beyond its jurisdiction, to be the r; suit of the tribunal having acted in excess of its jurisdiction. In an Indian case reported in A I R (1952) All. 61, we have the case of a Commissioner who was competent to cancel the licence of a dealer and to that extent it could be said that when he set out to exercise his power to cancel the licence he was really acting within the scope of his authority; but, nevertheless, the High Court of Allahabad quashed his order, because despite the requirements of the law to give reasons for cancelling a licence, the Commissioner had failed to give any reason whatever. If he had given reasons, the Court would hardly have concerned itself with the sufficiency of those reasons‑but on finding that he had not given any reason, the High Court quashed the order. Now was this excess of jurisdiction, or power, because, having acted contrary to the statutory mandate to furnish reasons, the Commissioner, in fact, acted in the exercise of his professed power arbitrarily, and failed to observe the law in the course of the exercise of his authority to cancel licence‑or, again, is it a case of ‘defect of jurisdiction’ upon the view that the law had empowered him to cancel the licence only upon assigning reasons, and this condition not having been complied with by the Commissioner, he was really acting outside the scope of his authority? How the situation in particular would be viewed would depend upon the approach to the `problem of jurisdiction’ by the Court. It is difficult to draw precisely the boundary line between `absence’ or `excess’ of jurisdiction, or `violation of the principles of natural justice’ or `the making of error in the course of the exercise, of jurisdiction which is apparent on the face of the record’. The question each time is: Has the jurisdiction been exceeded‑abuse of power, violation of principles of natural justice, if made out could be regarded as condemning the result reached as being due to excess of jurisdiction in that there is no jurisdiction to act dishonestly or in defiance of the principles of natural justice.
“A Referencer to Civil Cases (1949 to 1965)” by Hussain Bakhsh, B.A., LL. B., Advocate, Wah Cantt., pages 148; printed at the Ilmi Printing Press, Lahore; to be had from the Law Book House, 1, Katchery Road, Lahore. Price Rs. 10.
The publication is a vade mecum on “How to find and where to find Law”. It is an index or a referencer, as the author calls it, and gives brief outlines or hints of the cases decided by the superior Courts of Pakistan during the period 1949‑1965. The author, who had sometime been an Assistant Editor of the Indian cases, has given his notes very carefully and in an intelligent manner and in a few words drives the reader at the ratio decidendi of the case.
As such the book may be of great service to the busy practitioner when necessity is felt of picking out a law without loss of time. The junior members of the profession may also be equally benefitted by this handy and moderately priced book.
The references to Law Reports, though not specifically mentioned, relate to P L D. The paper used in the book is tough, printing neat, and the get‑up good.