Ouster clauses and a quest for rule of law

Ouster clauses and a quest for rule of law

By Muhammad Masood Asghar Civil Judge (Punjab)

We live in an age when Government is involved in regulating nearly all features of life. They are concerned with health, education, commerce, social security, housing, planning and many more others. As a consequence Government departments have been vested with vast discretions in various fields. They establish executive and quasi judicial authorities with unrestricted powers. Their powers are often protected by statutes. However, as power increases, chances of its misuse also increase, resulting in enhanced danger of encroachments upon rights of citizens.^2^ As the saying goes: "Power corrupts: absolute power corrupts absolutely." As powers of these tribunals and authorities are increasing, question arises as to how should law cope with misuse or abuse of their power? We did not have legacy of a great mechanism for dealing with misuse and abuse of ministerial powers. It developed as a result of conscious decisions by judiciary.

Courts vested with judicial power of State are bulwarks of rule of law. As such it is important for courts to identify errors of law in the actions of public authorities to keep them from exceeding their allotted legal sphere. There have been legislative attempts to keep courts from interfering into certain matters by means of introduction of provisions in law that bar jurisdiction of courts. Such provisions are termed as ouster clauses, barring clauses, preclusive clauses, privative clauses or legal finality clauses. Common feature of these sections of law is that they preclude or at least claim to preclude courts from reviewing acts or omissions of executive. However, through precedents courts have preserved the right to define the scope of such ouster clauses and did not allow these to be used as a cover for wrong-doing. For if they did, rule of law might have been at an end. In the words of Lord Denman CJ "The statute cannot affect our right and duty to see justice executed."^3^ In Pakistan it is "an established principle of law that the courts of this country are the judges of their own jurisdiction. "^4^ This is precisely the opposite in the case of administrative officers who "are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction".^5^ Judicial Power of state exercised by courts to hear and decide a cause entails power to declare and interpret the applicable law and as such any clause claiming to oust jurisdiction of courts is to be interpreted by courts like any other provision of law.^6^

Talking of interpretation, there are two main approaches of construction of statutes namely literal approach and objective approach. Former focuses more on words used by enactment and intends to give effect to the plain meaning of those words, while the latter is for ascertaining the intention of lawgiver and giving such meaning to words of enactment that is best suited to the intention so discovered. There was a time when literal approach was predominant but in recent past there is considerable departure from literal to purposive approach.^7^ While advocating and describing the so termed purposive approach Lord Denning said:

"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold set of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were.

. A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.^8^"

While holding ouster clauses as not applicable, courts have mostly acted on said purposive approach of construction. By following the purposive approach many a times courts have given meaning to the preclusive clauses which is quite the opposite of the plain dictionary meaning of the words used.

APPROACH TOWARDS OUSTER CLAUSES

It has been held repeatedly by our Superior Courts that ouster of general jurisdiction of courts should not be acknowledged automatically on an ouster clause pleaded in a case but scope of any such provision should be determined consciously by courts.^9^ Particularly where result of ouster of jurisdiction of courts would be injustice, defeat of valuable rights or trouble for citizens, any provision barring jurisdiction should be carefully examined. It implies "that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the courts" .^10^ Courts should start analyzing any ouster clause by a "Pronounced leaning against ouster".^11^ As to the basis of such leaning it was stated in Muhammad Ismail v State^12^ that:

"in construing a statute, the courts are normally reluctant to attribute to the legislature an intention of introducing a radical or sudden change of policy unless they are compelled to do so by the express and unequivocal manifestation of the intention of the legislature".

Lord Reid explained by hypothesizing a simple case:

"A statute provides that a certain order may be made by a certain person who holds a specified qualification or appointment, and it contains a provision .... That such an order made by such a person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order?"^13^

Similarly, there may be cases where an executive authority gives a particular decision in one case and then in another case with identical facts decides opposite to its earlier decision. Are courts supposed to let such exercise of power go unbridled? Answer can only be in NO keeping in view the nature of role of judiciary in preservation of rule of law. The leaning against ouster of jurisdiction applies with greater force when bar is against constitutional jurisdiction of Superior Courts.

The authority of special tribunals in fact flows from the general judicial power vested in courts. Therefore, courts vested with judicial power of state, have a basic jurisdiction to declare the true import of the statute establishing and empowering such tribunal.^14^ Any excess of power by the tribunal would mean a transgression on plenary jurisdiction of courts. As such it is the courts who define the contours of powers and area of authority of special tribunals.^15^ The matter of an act being with or without legal authority has been held to be a matter of civil nature falling within the pale of Civil Court by virtue of section 9 of Code of Civil Procedure, 1908.^16^ Our High Courts have constitutional authority to hold an action of a state functionary as "without lawful authority" and "of no legal effect".^17^ As for constitutional jurisdiction of Superior Courts, it cannot be taken away by an ordinary enactment.

Following are some grounds on the basis of which courts have quashed orders and actions notwithstanding ouster clauses:

ACTS WITHOUT JURISDICTION

When an act is done by some executive that purports to be an act under some statute, it must be done not only in accordance with mandate of the statute but also it should not violate any principle of law declared and applied by courts because otherwise the act may be termed as illegal and thus without jurisdiction.

In Secretary of State v Mask & Co.^18^ Privy Council held:

".... It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

Similarly, our Supreme Court held that:

"jurisdiction of civil courts even if barred and conferred upon--special tribunals, civil courts being courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal, or even mala fide."^19^

However, it was explained that non-observance of law which is to form basis of its setting aside, must be such as going to the root of the order.^20^ Any provision giving protection to acts of an executive or quasi judicial authority does not save an act which is illegal or without jurisdiction, as such act cannot be an act under the statute which created that authority and provided protection to its actions.^21^ When there is bar to jurisdiction of courts in any statute, it would operate only when authority constituted by the statute acted within four corners of the Act as otherwise the action will not be considered as one 'under the statute'.^22^ According to Lord Denning:

"When Parliament sets up a Tribunal it does so in the belief that it will decide cases in accordance with law and not contrary to it. So much so that it may be said that it is a condition of the grant of jurisdiction that it should decide according to law."^23^

So an error of law would take the tribunal outside the scope of its very jurisdiction and courts can interfere despite presence of an ouster clause.^24^ In England it was in Northumberland case^25^ that an error of law was held to make decision of tribunal as illegal and therefore quashed. An 'error of law' was consciously given a wide meaning. When a tribunal took an extraneous consideration into account or ignored a relevant ground, it was an error of law.^26^ Every time an error of law was committed, it was held that tribunal transgressed its jurisdiction.^27^ In,the great Anisminic case^28^ error of law committed by tribunal was held to be so grave that it took the tribunal outside its jurisdiction and produced a nullity. Initially, in England there was a rule called 'original jurisdiction fallacy' which meant that once jurisdiction is secured it cannot be lost subsequently. In the Anisminic case, however, it was held that by error of law jurisdiction can still be lost. Here question arises as to what errors of law would be within jurisdiction of tribunal and which would make its order 'without jurisdiction'? Errors or mistakes of law come from the concept that a legal system may guarantee fairness, it is not invincible.^29^ The Anisminic case in fact did away with distinction between jurisdictional and non-jurisdictional errors as it did with 'errors of law on the face of record' and other errors of law.^30^ It may be appropriate to say that no tribunal has any legal authority to make an error of law on a point on which outcome of case is based. Courts, on the other hand, have power to look into the matter to ascertain if an act has been performed according to legal mandate.^31^

In Pakistan, there was an ouster clause in Article 281(2) of the Interim Constitution after second Martial Law which stated "all orders made, proceedings taken and acts done by any authority or by any person which were made, taken or done, or purported to have been made, taken or done" in exercise of the powers granted by any Martial Law Regulation, Orders etc. "shall be deemed to be and always to have been validly made, taken or done." Our Supreme Court, while dealing with such clause, held that the validity given to acts done or purported to be done in exercise of the powers given by the Martial Law Regulations or Orders "does not have the effect of validating acts done coram non judice or without jurisdiction or mala fide", and the words "purported to be done or done in the purported exercise of powers" could not cover acts without jurisdiction etc.^32^ These acts are not saved from judicial review. The Article 281(2) was reproduced in Constitution of 1973 as 269(2) but when challenged Supreme Court dealt with it in same manner as was done in the case of Article 281(2) mentioned above.^33^ Another example is found in Ghulam Mustafa Khar^34^ case where Supreme Court dealt with Article 270(A), that was identical to Article 269(2) ibid, similarly. Honorable Justice Saad Saood Jan, speaking for unanimous bench of nine Judges, said that there was no reason why this Article should be treated any differently than the Article 269(2). In another case involving interpretation of ouster clause Supreme Court held that where act of authority is not within four corners of the statute establishing it court can hear `lis' and not otherwise.^35^ There are many other examples where our superior courts over-ruled many constitutional ouster clauses on the score of illegalities and jurisdiction.

Although as a general rule an administrative order may be challenged in a civil suit after availing and exhausting departmental or other remedies provided by the statute such as appeal, revision or review etc but when an order is challenged as illegal and without jurisdiction, it is not necessary to first avail such alternate remedies.^36^ Judicial review, it is held, is a collateral challenge.^37^

MALA FIDE ACTS

Dealing with an ouster clause Lord Reid^38^ said:

"is clearly intended to exclude, and does exclude entirely, all cases of misuse of power in bona fide. But does it also exclude the small minority of cases where deliberate dishonesty, corruption or malice is involved? In every class of case that I can think of the courts have always held that general words are not to be read as enabling a deliberate wrongdoer to take advantage of his own dishonesty. Are the principles of statutory construction so rigid that these general words must be so read here?...."

A mala fide act is, of essence, without any legal authority as it is a fraud on statute.^39^ Where proceedings are based on mala fide and statute is used as a cover, the action cannot sustain.^40^ Civil Court's jurisdiction with regard to mala fides can never be taken away.^41^ Saving provisions do not save acts tainted with mala fide.^42^ In a leading case^43^ on the subject of ouster clauses Supreme Court of Pakistan held that:

"....where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute".

While dealing with jurisdiction barring clause of section 14 of The Evacuee Trust Property (Management and Disposal) Act 1975 Supreme Court observed that such bar applies only to ordinary cases but where malice was alleged against the authority it had no application and civil court has jurisdiction to hear and decide.^44^ Our courts have set aside innumerable orders on the score of mala fide. Ordinary meaning of mala fide would be known to all but it is important to note here, as to what was the meaning attached to mala fide by courts while quashing orders on its basis? It was held that if manner of exercise of power violates law it would be termed as mala fide.^45^ In a case involving ouster clauses of sections 29 and 31 of Punjab Boards of Intermediate and Secondary Education Act, 1976, Lahore High Court held that it was not necessary for a student to allege personal grudge or personal enmity against any board official and "non-performance of duties in accordance with rules, regulations and principles of natural justice would amount to mala fide on the part of Board officials. "^46^ After studying most of the cases in which orders of executive authorities were held as illegal on the touchstone of mala fide, it becomes clear that there was hardly a case involving a personal grudge. In most of the cases it was constructive mala fide, inferred from non-observance of law, which stood as cause for setting aside orders. All this hints at interference by courts substantially to secure rule of law. Courts have acted to set aside orders on the ground of mala fide despite embargo on their powers in the shape of ouster clauses.

ORDERS VIOLATING NATURAL JUSTICE

There is not a great deal of controversy about the fact that orders that breach settled principles of natural justice are void. Rule against bias and right to be heard are the two main components of what we commonly understand as natural justice. A person, whether sitting in judicial or administrative capacity, is disentitled to hear a case if he has some pecuniary interest in the matter or has some bias against one of the sides.^47^ Even when there is some likelihood of bias as distinguished from an actual one, court should see what impression is given to the other side. If there are circumstances in which a reasonable man would think that arbiter would favor one side at cost of the other, it is sufficient disqualification. It is of primary importance that justice should not only be done but also be shown to be done.^48^

Right to hearing includes an opportunity for the person proceeded against to know the nature of allegation and material against him and then an opportunity to controvert it.^49^ In AG v Ryan a decision was made by violating such principle of natural justice that affected legal rights of a person and it was adjudged as without jurisdiction.^50^ No order can be passed affecting rights of any person without giving notice and providing an opportunity of hearing.^51^ Our Supreme Court even struck down laws that neither provided for notice of adverse action nor an opportunity of showing cause against it.^52^ It was held that principles of natural justice were to be read into every statute and considered integral part of law unless a statute clearly bars their application.^53^ In England, it was held that rules of natural justice apply not only to judicial proceedings but also to administrative proceedings.^54^ Courts can check observance or violation of principles of natural justice even though their jurisdiction is barred by enactment. However there is one limitation to the application of these principles and that is our Written Constitution. Whatever is forbidden by Constitution, cannot be accomplished by applying principles of natural justice.^55^

It may be noted that orders that can be termed as illegal, without jurisdiction, mala fide or offending natural justice are not strictly mutually exclusive. There may still be some other orders which can be interfered with despite barring provisions and besides the grounds stated above. Our civil courts can entertain a suit despite barring clause, where a substantial question of fact is involved and as such it requires determination after evidence which cannot be effectively done by executive or quasi judicial authority. As was held by Supreme Court:

"A purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void..... So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction."^56^

CONSTITUTIONAL CHALLENGE TO OUSTER CLAUSES

It is settled law that right to move or access courts of law is a fundamental right as enshrined in right to life under Articles 4 & 9 of our Constitution.^57^ The notion that legislature can bar jurisdiction of courts in certain matters, basically originated from England, where concept of supremacy of parliament is a fundamental constitutional principle. Under our written Constitution Parliament cannot frame a law which is contrary to fundamental rights.^58^ In our country, "Legislature cannot frame such law which may bar right of access to Courts of law and justice" .^59^ According to Fazal Karim, a learned former Judge Supreme Court of Pakistan, Article 4 of Constitution "debars the legislature from creating an authority whose actions are 'not subject to law. The legislature cannot, in the face of Article 4, enact that whatever action a particular person may take shall be immune from challenge."^60^ Moreover, 'vires' of any law made by Parliament can be challenged not only before Superior Courts but also before civil courts.^61^ Ouster clauses may also be challenged on the touchstone of repugnancy to the injunctions of Islam^62^, as was done with regard to provision of section 12 of the West Pakistan Requisitioning of Immovable Property (Temporary Power) Act, 1956, when said provision was held to be contravening injunctions of Islam on the basis that it ousted judicial scrutiny and gave unfettered power to Requisitioning Officer. It was held that the provision was violating verse No. 59 of chapter 4 Al-Nisa of the Holy Quran.^63^ In this context, ouster clauses can be assailed in constitutional jurisdiction before our superior courts.^64^

COMPLETE AND ABSOLUTE BAR

It is not always that courts do or have to overcome clauses ousting their jurisdiction. To quote our apex court:

"If a statute provides that an order made by an authority acting under it shall not be called in question in any court, all that is necessary to oust the jurisdiction of the courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omission or irregularity alleged will be a matter for that authority and not .... for a court of law"^65^.

There are cases where even illegal orders or orders claimed to be without jurisdiction cannot be challenged in civil courts. Such as when constitution bars jurisdiction of civil courts and provides a complete code of remedies and procedure in alternate. Instances may be found under Articles 212 and 225 of the constitution. Civil Courts cannot exercise jurisdiction in a matter pertaining to terms and conditions of service of civil servants. Similarly, any dispute about any election to National or Provincial Assembly may be raised only before an election tribunal. In these cases as the bar is provided by the constitution, ouster is complete and courts do not interfere in the cases under these laws.

Besides some of the examples given above, there have been many ouster clauses in many statutes that have been overcome by courts on the touchstone of errors of law, mala fides or violation of principles of natural justice. Courts have ousted the ouster clauses in what can be termed a quest to uphold much valued ideal of rule of law and preserve principle of separation of powers. "

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