Systematic and Regulatory guidance to the Realities of the Ultra Vires in the law along with its flip-flop sides

          For the purpose of writing a blog on the topic “Systematic and regulatory guidance to the Realities of the Ultra Vires in the law along with its flip-flop sides” a very unique and pertinent concern in the legal scenario irrespective of the boundaries of law has been taken as the central issue of it.  This research reflects some initial thoughts upon this topic.

      In modern days, censuring seems to be a necessity e.g every act of a human whether an individual act or the group act, needs to be censured, in reality we are so much pressurized by our necessities that, without bothering about them, we may lack behind in this race and censuring is also the one amongst them and the core reason behind it is the absence of control, people show in exercising self-restraint and affluence of desire in every way. In the whole cycle,  the acts of a person whose acting on behalf of a state also attracts a great importance which leads towards the inception of “The Doctrine Of Ultra Vires ”[1] , the concept existing since the beginning of man itself but had never been codified formally. However, this concept is the trigger and foundation of the reasoning for any man to determine whether an action is legitimate or illegitimate. This concept has been elaborated by judges in various Judgements given over a period of time[2]. For decades this doctrine is a part of literature and from UK to USA and from USA to India, everyone recognized it and applied it in various situations and circumstances. In this blog we will try our level best to deeply dig into the, expression of “Doctrine of Ultra Vires” and discuss all the aspects precisely and clearly with respect to its application in Pakistan, being a valuable part of administrative justice[3].

A. Evolutionary development of Doctrine of Ultra vires : Its’ sources and meanings.

      The analogy of the term Ultra vires’ lead us to its origin from Latin word meaning ‘beyond the powers of’[4]  , in stricter sense it means any act performed in excess of the powers of the authority or the person who performs it [5]    and in wider sense  it is described by Professor Wade, as;  “ultra vires doctrine is not confined to cases of plain excess of power; it also governs abuse of power, as where something is done unjustifiably, for the wrong reasons or by the wrong procedure. In law the consequences are exactly the same; an improper motive or a false step in procedure makes an administrative act just as illegal as does a flagrant excess of authority. Unless the courts are able to develop doctrines of this kind, and to apply them energetically, they cannot impose limit on the administrative powers which Parliament confers, so freely, often in almost unrestricted language[6].”

         When we say, origin of the doctrine of ultra vires, it interestingly takes back us to the company law, England and the corporate cases, where it was originated for safeguarding the interests of the shareholders of the companies. It was delineated since 19th century’s mid, when the cases from railway and other companies formed under parliamentary legislation comes to English Courts[7].  The first case from which the doctrine was clearly recognized and was considered extremely important in the development of the concept of doctrine of ultra vires by the court was Ashbury Railway Carriage and Iron Company Ltd v. Riche[8]  in which it was held “that the object clause of memorandum for company is an important one to which company has to stick, thus the contract made by companies was void which included invalid consideration not according to the memorandum so the compensation was not awarded[9]”.  So we can confer that the rationale behind this doctrine is the concept of power, whenever granted, cannot and should not be unlimited and all acts must be kept within the ambit of defined powers. As once said by Lord Acton, “Power tends to corrupt, and absolute power corrupts absolutely”[10]

          This doctrine has been broadly discussed on the basis of two main kinds; substantive or simple ultra vires and procedural ultra vires. If an administrative public authority is conferred power through delegated legislation[11]  and that authority  exercise it beyond the given scope or simply acts without power, in excess of power or abuses power e.g Malafide, such acts are liable to be rendered invalid on the ground of substantive ultra vires[12]  as parliament or the parent act never intended to form such rules based  on unreasonableness  under delegated legislation (DL) or rules which threatens constitutionality of the parent act or  DL ultra vires to the parent act’s provisions itself , will ipso facto Ultra Vires , as in case Khawaja Ahmad Hassaan Vs Government of Punjab and others[13]   it was held that, “ It is a well-recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to”. On other hand , When an administrative authority acts inconsistent of mandatory rules provided in the parent act or in general law or are not in accordance  with the principles of natural justice, such acts are invalid being  procedurally ultra vires[14].  Prior to any decision, court can legitimate judicially review by determining  the intent of the legislature , whether the enabling provision in the parent act or legislation explaining procedure was mandatory in nature or was only directory. DL can be declared void ab-initio broadly on following two procedure, i.e if Publicized ; or Based on suggestion or consultation of any authority. 

B. Distinction between Intravires ; Ultravires ; Illegality along with test of Constitutionality

            In understanding the meaning of ultra vires many people get confused due to the similarity of idea between ultra vires and illegality since both includes conflict with law and repercussion of both the acts are same that is being void but if we step into the restricted sense there stands a fine distinction between both the acts which is very clear from the point[15]: of Das Satya Ranjan that,“illegal and ultra vires are phrases to which distinct meanings have, and very properly have been attached. Illegal in the strictest application of the word refers to that quality which makes the act itself one contrary to law .The term “ultra vires” has reference to the legal power of a person to do an act. An act may be legal and at the same time ultra vires. It is, therefore, important that the words illegality and ultra vires should each be used with due regard to its proper signification[16]. " Illegality being violative of law, is prohibited whereas Ultra vires offends the law only, not explicitly prohibited but also not permitted by any provision and related to the competence and power. In furtherance of this discussion , if any law is publicized by the federal or provincial government and proclaimed ultra vires than its unconstitutionality has to be verified but in case of a law by some delegated authority than there are some grounds which are needed to be proved such as unreasonableness, uncertainty, irrationality , procedural impropriety[17]  or conflict with some other statute, repugnant to a provision of some other Statute and provided statutory procedure has not been followed[18]  otherwise if petitioner certainly fails but respondent’s side proves that the challenged law is unrestrained of any invalidity, is intra vires and is not violative of any constitutional provision then such defenses, if backed with ample evidence, could be recognized judicially[19].  As in case Muhammad Salman Vs Government of Punjab[20]  in which plea raised by the petitioner medical students was that,  their right to seek education was subjected to a subordinate statute i.e. University of Health Sciences Ordinance, that did not allow them to continue medical studies after failing four times. “A learned Full Bench of this Court held that the University of Health Sciences Ordinance, 2002 was not ultra vires to the Constitution of Pakistan so the petition was dismissed. When we go with the facts we analyze that every word comes with an opposite meaning as we can ascertain in case of word ultra vires which means use of excess power or authority granted by law and its opposite is known to be intra vires meaning falling within the restrictions conferred by legislation, this can also be taken as the major distinction between the two expressions[21]".
        Now after understanding the whole concept of ultra vires our mind automatically moves towards the question that, What will be the basic criteria for declaring a law ultra vires? It is easier to start an argument with the fact that, the constitution governs the state or country being supreme law of the land in Pakistan and many other countries as well and other statutes excerpt the authority from it being subordinate to it but over-stretchiness’ of this constitutional power or any contravention to its provisions, declares such laws unconstitutional or ultra vires to the constitution, as in case Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another[22]  it was held that that a law promulgated through federal or provincial assembly has to stand the test of constitutionality. If we keenly observe that, we can easily comprehend that, almost in each case there is some higher or supervisory law that keeps an eye on all the subordinate laws whether they are in conflict with the parent act or not, whether such laws or amendments in the subordinate laws are legal or valid or not. It is established in a case law, 2012 P L C (C.S.) Quetta 1211, that if the subordinate legislation is repugnant to/against the intent and main purpose of the parent act or to any established principle of the law, it is said to be ultra vires. Here in this blog , we can precisely discussed about the “test of Constitutionality”. It  was held in the judgment PLD 2004 SC 168 , that,  Laws are declared valid, if their validity and  constitutionality is established. The concept of criteria gets more clear in other case Watan Party v. Federation of Pakistan[23]  it was held that “ Any law repugnant to any constitutional provision is liable to be struck down; “it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared unconstitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect.” To determine the constitutionality of an Act, its pith and substance should be considered[24].

C. Relationship between “Ultra vires” and “Judicial Review”.

            Ultra vires’ doctrine within the administrative law especially with respect to Judicial Review (JR), is considered to be the backbone, as the theoretical basis of administrative actions comes from it and without which judicial review would rest on uncertain foundations. Simply, we can explain it like that, if decisions are given out of the ambit of assigned statutory power, the court can declared them illegal or ultra vires and the rationale behind it should be only that aggrieved party should be able to challenge any administrative actions (whether executive, legislative or quasi-judicial actions) before a fair and independent court to get justice. All administrative actions can be scrutinized through the process of judicial review. It afforded a great importance in return to its traditional functions that it can keep a check on administrative powers or actions ; protects the legislative intent of any statute under the judicial scrutiny and rectifies and protects the abuse of discretion by the administrative authorities[25] for example incompetence[26] , corruption, bribery, partiality, prejudice , biasedness[27]  and unjust behavior.
          The blog in this half, focuses on origin and historical background JR. JR can also be traced from its divine origin. Surah.e.Nisa, Quran says; “Believers! Obey Allah and obey the Messenger, and those from among you who are invested with authority; and then if you were to dispute among yourselves about anything refer it to Allah and the Messenger if you indeed believe in Allah and the Last Day; that is better and more commendable in the end[28]”.  In U.S a landmark judgement of William Marbury Vs James Madison[29]   is considered to be the turning point, when Supreme Court exercise its authority and declared federal statutes unconstitutional and at that time the opposing parties as of no surprise once again rebuke the whole concept of JR, like it happens before in the US’s constitutional history during Civil War or the New Deal. In Pakistan JR of administrative action is inherited from Britain.
         In Pakistan, the superior courts derive their authority to judicially review administrative actions, from the 1973 Constitution. Though no express provision as to “Judicial Review” has been given in the Constitution of Pakistan 1973, however, Supreme Court[30]  of Pakistan may under Article 184(3)[31]  and any High Court may under Article 199[32]  exercise the power of judicial review on various touchstones. In the case-law cited as 2008 PLD 673 SC-69, it was established that, Supreme Court, in exercise of its powers under Art.184(3) of the Constitution, was not supposed to interfere in policy decisions of administrative nature and to control the administrative affairs of the government but the interference of Supreme Court in the matter relating to the breach and enforcement of fundamental rights of people at large scale was always justified. In another case-law cited as 2012 SCMR 455-1785 , the SC’s power is restricted or we can say limitised under Art-184(3) of Constitution of Pakistan,1973.
            Furthermore, many legislative acts are subject to JR e.g any law made repugnant to the injunctions of Islam[34] , any law inconsistent with the basic character of the constitution[35] , or law creating confliction between two government.  For instance, in the reported judgment cited  as PLD 2012 SC 923[36] , the honourable supreme court in its judicial review powers under Article 184(3) of the constitution declared contempt of court ordinance 2012 ultra vires and unconstitutional. Similarly the Honourable Lahore High court in its judgement reported as PLD 2017 Lahore 610[37]  declared the Federal Revision and Declaration ordinance 1981 ultra vires and unconstitutional and restored the repealed section 7 of Divorce Act 1869. Another  example of exercise of power by SC is when  this top court held in its 33-page judgement by Chief Justice Mian Saqib Nisar , that  the FATA Interim Regulation was declared to be   ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203 of the Constitution of Pakistan[38] . Here we want to make it clear that, Judicial review can never be equated with the concept of appeal in court, due to the concept of Separation of powers, administrative actions are not lower in degree as compared to Judicial Review, one authority cannot nullified the decision of another authorized authority,except in the cases of arbitrariness of discretion, illegality , unreasonableness sparked by malafides (2014 SCMR 676, para [460]). Wednesbury unreasonableness test, is the new unique addition in this blog, that can be used as standard for JR of executive or administrative action[39] . This concept is borrowed from the current debate in the United Kingdom  to be accepted as standards for judicial review of administrative action. Justice Tassaduq Hussain Jillani defined 3 major grounds, on which administrative action may be challenged judicially. These grounds are 1. Illegality, which means the decision-maker violate the law, 2.irrationality called Wednesbury unreasonableness; 3.procedural impropriety; governed by the rules of Natural Justice[40].   Furthermore,  he defend the argument by saying that , the irrationality principle has its roots in the seminal United Kingdom Court of Appeal case of Associated Provincial Picture Houses Ltd v Wednesbury Corp[41] , where Lord Greene MR established that;  an irrational decision to be one that is ‘so unreasonable that no reasonable authority could ever have come to it’.

D. Fine line between Separation of Powers, Delegated or Sub-Ordinate Legislation and Judicial Review.

            To keep checks and balances in every governmental institution and the prevention of profiteering, nepotism and all kind of corruption comes about when the concept or doctrine of “Separation of Powers[42] ” was developed and took  a little U-turn in the Twentieth Century (20th), where the authorities performing administrative duties or functions gained the power to make rules. This was commonly called as delegated legislation or sub-ordinate legislation. We all are familiar with the fact that , nowadays  number of formulated laws which rules over the people basically originates from the administrative authorities but not the legislature itself. In the case , Taraqiati Bank Limited Vs Said Rehman[43]  , by giving reference of Sukhdev Singh and others v. Bhegat Ram and others[44], main reasons justifying the need for delegated legislation has been mentioned , which are , Pressure on parliamentary time, Technical Character of modern legislation which necessitates prior consultation and expert advice on interests concerned and Need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate. Likewise, in another case[45]  ,court has clearly established that, Delegation of an "essential legislative function" by the Legislature to the Executive was not permissible under the Constitution. In Pakistan, Committee on Delegated Legislation was created by amending the Rules of Procedure and Conduct of the business , 2012 and by inserting certain rules in it i.e Rule 172 C[46]  , Rule 172 D, Rule 172E to scrutinize the legislation of ministries and divisions[47] . In  a leading judgment reported as PLD 1991 SC 14 , the principle was laid down that The powers to be exercised under delegated legislation shall not be arbitrary, or inconsistent or beyond the scope of principal legislation
           Pakistan’s constitution although gives power to SC of Judicial review, but  there are some restrictions under Art-8 and Art-227 of the constitution of Pakistan , which being federal, distributes the autonomy between the provinces and the center. The court can exercise the Power of JR under aforementioned articles. Moreover, under the Article 239(5) of the constitution of Pakistan, the courts granted with such power cannot be exercised in arbitrary manner and no Amendment made by the Parliament can be called into question, but courts can ask Parliament to undo the Amendment for being ultra vires to the Constitution[48] .

Conclusion

            Having done the above discussion, we come to the conclusion that , the question of the proper role and the limits of doctrines of Ultra vires is self-evidently a complex question. Moreover, It  is important to note that, the institution of judicial  review must be justified in a constitutional democracy, it is among the duties of the courts to make all efforts needed in the interpretative process to save rather than destroy the statutes and Wednesbury Unreasonableness test can be used as standard. The courts should work to  harmonize the provisions of a and save it from unconstitutionality and general bring to effect the obvious intent of legislature and in case of delegated power, it is expected that such power will be used only bona fide, in a responsible manner and in true interest of the general public.

            This article is written by Sadia Tanveer and Co-author Rida Naeem , both are in the last year of LLB.Hons. from Bahria University, Islamabad. Along with studying Law, Sadia Tanveer has successfully cleared International Law course from RSIL in 2019, presently working as an internee and research assistant with Maiken Law Associates. She can be reached at sadiatanveer812@gmail.com.This article discusses the doctrine of ultra vires in detail.

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References

[1]. Simran Chandok, Critical Analysis of Doctrine of Ultra Vires, (2011).
[2]. Ibid.
[3]. Justice Dr Munir, The law of ultra Vires, ( 2011).
[4]. Ibid.
[5]. B.C Sarma, The Law Of Ultra Vires, (2004).
[6]. ( Wade, H.W.R.: Administrative Law, ELBS,OUP, Oxford, 1985).
[7]. Chamila S. Talagala, The Doctrine Of Ultra Vires And Judicial Review Of Administrative Action, (2011).
[8]. [1875] LR 7 HL.
[9]. Simran Chandok, Critical Analysis of Doctrine of Ultra Vires, (2011).
[10]. Chamila S. Talagala, The Doctrine Of Ultra Vires And Judicial Review Of Administrative Action, (2011).
[11]. Administrative Law , Doctrine of Ultravires.
 Available at :https://tyrocity.com/topic/doctrine-of-ultra-vires/
[12]. Ibid.
[13]. 2005 SCMR 186.
[14]. Chamila S. Talagala, The Doctrine Of Ultra Vires And Judicial Review Of Administrative Action, (2011).
[15]. Das, Satya Ranjan: The Law of ultra vires , Page # 8.
[16]. Ibid.
[17]. Hammad Mustafa , B.A Jurisprudence Oxford University, Wednesbury, unreasonableness, proportionality  and Judicial Review.
Available at : https://sahsol.lums.edu.pk/law-journal/wednesbury-proportionality-and-judicial-review
[18]. Rabia Tul Saliha, Judicial Review in Pakistan, (2012).
[19]. Paul Craig, Ultra Vires and the Foundations of Judicial Review, (1998).
[20]. 2006 CLC 463.
[21]. Prachi Verma, Doctrine of Ultra Vires as Judicial Control over Delegated Legislation In India, 2016
[22]. P L D 2011 Lahore 120.
[23]. PLD 2006 SC 697.
[24]. 2007 PTD Supreme Court 67,
[25]. Electricities of N. Cal., Inc. v. Southeastern Power Admin., 774 F.2d 1262 (4th Cir. 1985).
[26]. Tracy v. Gleason, 379 F.2d 469 (D.C. Cir. 1967)  [(finding an abuse of discretion when an administrator discontinued benefits to a veteran, who was totally disabled by insanity and who failed to answer a questionnaire concerning his income).]]
[27]. Gibson v. Berryhill, 411 U.S. 564 (1973) [(affirming the holding of the federal district court that enjoined proceedings of the Alabama Board of Optometry on the ground that the Board was biased and could not provide a fair and impartial hearing)]]
[28]. Surah An-Nisa, Verse No.59 (4:59) ABUL ALA MAUDUDI(WITH TAFSIR).
 Available at: https://quran.com/4/59?translations=101,84,19,22,21,20,18,95,17,85
[29]. 5 U.S. (1 Cranch) 137 (1803) “Acts of Congress in conflict with the Constitution are not law and therefore are non-binding to the courts, and that the judiciary's first responsibility is always to uphold the Constitution. If two laws conflict, the court bears responsibility for deciding which law applies in any given case.”
[30]. The main difference between Article 184(3) and Article 199 is that a Supreme Court may exercise powers as mentioned under article 199 only when there is a matter of public interests.
[31]. Constitution of Pakistan, 1973.
Available at : https://pakistanconstitutionlaw.com/article-184-original-jurisdiction-of-supreme-court/
[32]. Constitution of Pakistan, 1973.
Available at:https://pakistanconstitutionlaw.com/article-199-jurisdiction-of-high-court/
[33]. In this case ,it was held that, “Once the competent authority in the government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority”.
[34]. Article 227 of the Constitution
[35]. PLD 2006 SC 697, “it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect.”
[36]. Baz Muhammad Kakar versus Federation of Pakistan
[37]. Amin Masih vs Federation of Pakistan
[38]. Syed Sabeehul Hussnain, SC declares Fata interim regulation unconstitutional, January 17, 2019.
Available at: https://nation..pk/17-Jan-2019/sc-declares-fata-interim-regulation-unconstitutional.
[39]. Hammad Mustafa , B.A Jurisprudence Oxford University, Wednesbury, unreasonableness, proportionality  and Judicial Review.
Available at:https://sahsol.lums.edu.pk/law-journal/wednesbury-proportionality-and-judicial-review
[40]. Ibid.
[41]. [1948] 1 KB 223, 230.
[42]. In  which three organs of government work independently and carry out their functions separately so that equal power can be exercised over the people instead of one organ enjoying or exercising too much power over the people .
[43]. 2013 SCMR 642(g)
[44]. AIR 1975 SC 1331
[45]. JURISTS FOUNDATION through Chairman Vs. FEDERAL GOVERNMENT through Secretary, Ministry of Defense and others, P L D 2020 Supreme Court 1
[46]. Added by S.R.O. 1323, dated 31-12-2015.
[47]. http://www.senate.gov.pk/uploads/documents/1473264371_847.PDF
[48]. https://pakistanconstitutionlaw.com/article-239-constitution-amendment-bill/