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SC sets rules for judicial review in public interest case.

Byline: Hasnaat Malik

ISLAMABAD -- The Supreme Court has set principles to exercise power of judicial review in public interest matters under Article 184 (3) of the Constitution.

In his verdict in Royal Palm Club lease agreement case, Justice Ijazul Ahsan, who will be one of future chief justice of Pakistan (CJP), has cited several past rulings to justify power of judicial review in financial matters under Article 184(3).

Justice Ahsan while summing up scope of the power of judicial review has noted that the court can use these powers in cases of acts or omissions on the part of state functionaries - reflecting violation of mandatory provisions of law or the rules framed there under.

The judgment also notes that breaches of contracts - which do not entail examination of minute/disputed questions of fact committed by public functionaries involving dereliction of obligations flowing from a statute, rules or instructions - can also be reviewed.

It says public functionaries must exercise authority, especially while dealing with public property, public funds or assets, in a fair, just, transparent and reasonable manner.

Such exercise of power should not be untainted by malafides or colourable exercise of power for ulterior motives; without discrimination and in accordance with law, keeping in view constitutional rights of citizens, even in the absence of any specific statutory provisions setting forth the process in this behalf.

'Interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by malafides.

'Governmental bodies' powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc, are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner.'

The judgment rules that public funds, public property, licences, jobs or any other government largesse is to be dealt with by public functionaries on behalf of and for the benefit of the people.

'Scrutinise matters where public money is being expended through procurement or public property is being sold, so as to ensure that transactions by the government are undertaken and contracts executed in a transparent manner, legally, fairly and justly without any arbitrariness or irrationality and public money and public property is not squandered or stolen.'

It says judicial review can also be made in view of presence of elements such as personal solicitation and personal influence in procurement of contracts directly leading to inefficiency in the public service and to unnecessary expenditures of the public funds

'All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution.

'If material changes are brought about in agreements subsequent to the bidding to benefit a particular party, this will in fact negate the notion of a fair and open competitive bidding process.'

It notes that the courts should ordinarily refrain from interfering in the policymaking domain of the executive or in the award of contracts and should not substitute its decision for that of the latter unless the acts or omissions smack of arbitrariness, favouritism and a total disregard of the mandate of law.
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Publication:The Express Tribune (Karachi, Pakistan)
Date:Jun 29, 2019
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