WHAT IS A JUDICIAL ACT?

by

Justice ® Dr. MUNIR AHMAD MUGHAL

13 August 2011

http://ssrn.com/author=1697634

Electronic copy available at: http://ssrn.com/abstract=1905761

 ‫ﺑﺳم ﷲ اﻟر ّ ﺣﻣن اﻟر ّ ﺣﯾم‬

A judicial act is an act done by a

member of the judicial department of
government in construing the law or
applying it to a particular state of
facts presented for the determination
of the rights of the parties there
under; an act done in furtherance of
justice, or a judicial proceedings by a
person having the right to exercise
judicial authority.

A judicial act must be an act

performed by a Court, touching the
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Electronic copy available at: http://ssrn.com/abstract=1905761

rights of parties, or property, brought
before it by voluntary appearance, or
by the prior action of ministerial
officers.

An adjudication of the rights of the

parties who in general appear or are
brought before the tribunal by notice
or process and on whose claims
some decision is rendered.

According to American
Encyclopaedia a judicial act is the
power to decide the rights of person
or property in specific cases.
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A judicial act is an act involving the
exercise of judicial power.

The distinction between a judicial

and a legislative act is well defined.
The one determines what the law is,
and what the rights of parties are,
with reference to transactions
already had; the other prescribes
what the law shall be in future cases
arising under it.

The term judicial does not

necessarily means acts of a judge or
legal tribunal sitting for the
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determination of matters of law, but a
judicial act may be an act done by
competent authority upon a
consideration of facts and
circumstances and imposing liability
or affecting the rights of others. The
authority must exercise some right or
duty to decide before its act can be
called judicial. The act of the
presiding member of a municipal
council in declaring the result of a
poll is a purely ministerial or
administrative act___ and not
judicial.

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A judicial act seems to be an act
done by a competent authority upon
a consideration of facts and
circumstances and imposing liability
or affecting the rights of other. Thus it
must be that of a person or persons
who have legal authority to
determine questions affecting the
rights of parties and in a judicial
manner.

The duties of the Election Officer

certainly fit it with the definition of
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judicial acts. He has legal authority to
decide on the objection raised by the
candidate. The question decided by
him effects the rights of the parties
and in deciding the objection rose he
hears the parties and may also make
an enquiry and therefore has a duty
to act judicially.

A judicial action is usually held to be

adjudication upon the rights of
parties who, in general, appear or
are brought before Tribunal by notice
or process, and upon whose claims
some decision or judgment is

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rendered. Action of a court upon a
cause, by hearing it, and determining
what shall be adjudged or decreed
between the parties, and with which
is the right of the case.

HOW TO DISTINGUISH BETWEEN

ACTS OF A JUDGE AS TO WHICH
IS A JUDICIAL ACT AND WHICH IS
A MINISTERIAL ACT?
The acts of justices of the peace may
be either judicial or ministerial.

If justices in dealing with a particular

matter have to exercise their
discretion in arriving at a decision,

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they are acting judicially. If on the
other had they are merely required to
do a particular act and are precluded
from entering into the merits of the
matter, they are said to be acting
ministerially.

The duty of a Magistrate, for

instance, in respect to admitting a
person to bail is a judicial act, as it
involves inquiries on which discretion
must be exercised.

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WHAT IS THE DISTINCTION
BETWEEN JUDICIAL AND
MINISTERIAL POWERS?
Judicial power has never been held
to apply to those cases where
judgment is exercised as incident to
the execution of a ministerial power,
nor has it ever been held in the
exercise of ministerial power by the
courts where they have been
compelled to exercise of judicial
power.

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As ministerial powers are often
vested in judicial officers so in a less
technical and more liberal sense of
the terms, it seems, ministerial
officers or boards are sometime
required to exercise judicial or rather
quasi judicial powers.

A judicial decision is merely a

decision which is in fact exercised by
the Courts in accordance with strict
legal procedure, whereas quasi
judicial decision is given by an
administrator or an administrative

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Court entitled to follow its own
procedure provided only that rules of
natural justice are observed.

Article 129 of the Qanun-e-

Shahadat Order, 1984 is relevant
to this subject. It reads as under:

1. 129. Court may presume

existence of certain facts.
The Court may presume the
existence of any fact which it thinks
likely to have happened, regard
being had to the common course to
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natural events, human conduct
and public and private business, in
their relation to the facts of the
particular case.
Illustrations
The Court may presume—

(a) that a man who is in

possession of stolen good soon after
the theft is either the thief or has
received the goods knowing them to
be stolen, unless he can account for
his possession;

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(b) that an accomplice is unworthy
of credit, unless he is corroborated in
material particulars;

(c) that a bill of exchange,

accepted or endorsed, was accepted
or endorsed for good consideration;

(d) that a thing or state of things

which has been shown to be in
existence within a period shorter than
that within which such things or
states of thins usually cease to exist,
is still in existence;

(e) that judicial and official acts

have been regularly performed;
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(f) that the common course of
business has been followed in
particular cases;

(g) that evidence which could

be and is not produced would, if
produced, be unfavourable to the
person who withholds it;
(h) that, if a man refuses to answer
a question which he is not compelled
to answer by law, the answer, if
given, would be unfavourable to him;

(i) that when a document creating

an obligation is in the hands of the

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obligor, the obligation has been
discharged.

But the Court shall also have

regard to such facts as the following,
in considering whether such maxims
do or do not apply to the particular
case before it;

as to illustration (a). A
shopkeeper has in his till a marked
rupee soon after it was
stolen, and cannot account for its
possession specifically, but is
continually receiving rupees in the
course of his business;

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 as to illustration (b). A,
person of the highest character, is
tried for causing a man’s death by an
act of negligence in arranging certain
machinery, B, a person of equally
good character, who also took part in
the arrangement, describes precisely
what was
done, and admits and explains the
common carelessness of
A and himself;
as to illustration (b). A crime
is committed by several persons. A,
B and C, three of the criminals, are

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captured on the shop and kept apart
from each other. Each gives an
account of the crime implicating
D, and the accounts corroborate
each other in such a manner as to
render previous concert highly
improbable;
as to illustration (c). A, the
drawer of a bill of exchange, was a
man of business, B, the acceptor,
was a young and ignorant person,
completely under A’s influence;
as to illustration (d). It is
proved that a river ran in a certain

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course five years ago, but it is known
that there have been floods since
that time which might change its
course;
as to illustration (e). A judicial
act, the regularity of which is in
question, was performed under
exceptional circumstances;
as to illustration (f). The
question is, whether a letter was
received. It is shown to have been
posted, but the usual course of the
post was interrupted by disturbances;

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 as to illustration (g). A man
refuses to produce a document
which would bear on a contract of
small importance on which he is
used, but which might also injure the
feelings and reputation of his family;
as to illustration (h). A man
refuses to answer a question which
he is not compelled by law to
answer, but the answer to it might
cause loss to him in matters
unconnected with the matter in
relation to which it is asked;

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 as to illustration (i). A bond is
in possession of the obligor, but the
circumstances of the case are such
that he may have stolen it.

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