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2 LUMS L.J. 1 (2015)

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Wednesbury, Proportionality and Judicial Review


              Wednesbury,   Proportionality  and Judicial Review

                               Hamaad  Mustafa*

      This article argues in favour of the proportionality test as the standard
      for the judicial review of executive actions in Pakistan. It begins by
      tracing out the origins of the prevailing Wednesbury unreasonableness
      test as well as the proportionality test, both in Pakistan and in common
      law jurisprudence generally. It then juxtaposes the two tests, and argues
      that both attempt a review of the calculus undertaken by the primary
      decision-maker  tempered  with the appropriate amount  of deference
      given to him. However, the analytically clearer framework provided by
      the proportionality test means that it is able to channel this inquiry in a
      more  transparent and accurate manner, and as such, provides a more
      reliable test for the review of executive actions.

Introduction

A  fundamental requirement of justice is that an aggrieved person should be able to
challenge state action before an independent court. The grounds on which such a
challenge will be accepted must be clear - they must not unduly fetter the discretion
of  the democratically  accountable decision-makers,  while  at the  same  time
demarcating  the  four corners  within which  this discretion must  operate. In
delineating the scope of this discretion, two distinct standards of review have been
used in common  law jurisprudence - the Wednesbury unreasonableness test and the
proportionality test. In the Dr Akhtar Hassan case in 2012, the Supreme Court of
Pakistan reiterated Wednesbury unreasonableness  as the sole standard for judicial
review of executive or administrative action. At the same time, proportionality is
not an alien concept for jurisprudence in Pakistan. In the DG Cement   case, the
Lahore  High Court declared it as the standard for the review of legislation on the
touchstone of constitutionality.2 The jurisprudence of the superior courts suggests,
thus far, that proportionality and Wednesbury are to be treated as distinct tests,
compartmentalised  in their own respective areas and having no necessary overlap
with each other. At the same time, close parallels may be drawn between how the
judiciary has developed and used the two tests, and the content of the two tests as
understood  by the judiciary. This article argues that the proportionality and the


* B.A Jurisprudence Oxford University. Presently an associate at Raja Mohammad Akram & Co.
  [2012] SCMR 455.
2 [2013] PLD Lahore 693.


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