The Doctrine Of Judicial Review And The Business OfLegislation In Pakistan

Published Date March 2, 2018 By Asad Ali.URL:

https://www.theweeklypakistan.com/2018/03/02/the-doctrine-of-judicial-review-and-the-
business-of-legislation-in-pakistan/ The judicial Review refers to the ability of the Court to interpret
laws and executive actions inlight of the Constitution. If such law is found to be violated to the
Constitution, or the actionstaken are beyond the powers granted by the Constitution, it is liable to
struck down by the Courtas null and void. In a democratic system the major organs of Government
viz. the Executive, theLegislature and the Judiciary have their own respective functions. In an ideal
situation, theseorgans are functionally independent and no organ encroaches on the domains of
others. Eachorgan has a check on the powers of the other organs, thereby creating a regulatory
mechanism.Under the doctrine of Judicial Review executive and legislative actions can be reviewed
by theCourts.Pakistan has a federal constitution, like USA and India, which distributes powers
between thecenter and the provinces.

Under Article 142 of the constitution,

the federal legislature or parliament can make laws on subjects enumerated in the federal
legislative list and theconcurrent legislative list. Similarly, provincial legislatures are competent to
legislate on subjectsfalling within their sphere of powers. If we go by the book, neither parliament
nor a provincial

legislature can encroach upon the other’s legislative powers.

There are two pertinent questions as for as power of judicial review is concerned, does the judiciary
enjoy the power of judicial review in Pakistan, if the answer is affirmative, what is the scope and
limits of this power?

By the plain reading of the constitution of Pakistan, it is crystal clear that, our constitution
placessome restrictions on the powers of both federal and provincial legislatures. In the first place,
nolaw can be made which is in conflict with any of the fundamental rights granted by
theconstitution to the citizens. In this respect,

Article 8 of the constitution states

“Any law, or any

custom or usage having the force of law in so far as it is inconsistent with the rights conferred by

this Chapter [Chapter 1], shall, to the extent of such inconsistency, be void.”

In the second place, no law can be made which is repugnant to the injunctions of Islam. In
thisconnection,

Article 227 of the constitution stipulates

“

All existing laws shall be brought in

conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah…and nolaw shall
be made which is repugnant to such injunctions.”

In the third place,

parliament cannot make any law which is inconsistent with the basiccharacter of the constitution

the fundamental law of the land. There are thus four main

restrictions on the legislative powers of parliament

. “It cannot, except when a proclamation of

emergency is in force, legislate on provincial subjects; and its laws cannot be incompatible with

fundamental rights, Islamic injunctions and the basic character of the constitution itself”.

It is from these restrictions on the legislative competence of parliament that the power of
judicialreview follows. The superior judiciary can invalidate an act of parliament that is beyond
itslegislative competence for any of the four reasons mentioned in preceding paragraphs. In
otherwords, parliament in Pakistan is not sovereign. Rather its powers are restricted by some
written provisions of the constitution. If these powers are over-stepped, the judiciary can be moved
toget the grievances of the aggrieved party redress. Here it seems pertinent to mention that
theconstitution of Pakistan, like Indian and American constitutions, does not confer the power of
judicial review on the judiciary in express terms. The constitution does not state that a high courtor
the Supreme Court can strike down a law passed by parliament or a provincial assembly.What the
constitution confers on the superior judiciary is the power to interpret the constitution.While
interpreting some provisions of the constitution, the courts may find that a particular lawis in
conflict with those provisions. Since the constitution is the fundamental law of the land, anylaw
which conflicts with it shall be void. The legislature has to amend or repeal it.

As a former judge of the US Supreme Court once said “We [judges] are under the constitution.

But t

he constitution is what we say it is.” The judiciary does not make laws but interprets laws—

ordinary as well as constitutional. If the judges find a piece of legislation to be unconstitutional,it has
to be removed from the statute book.Thus the answer to our first question whether the judiciary in
Pakistan has the power of judicial

review is in the affirmative. Let’s turn to the second question regarding the scope and limits of

this power. No constitution is static. Rather every constitution grows through conventions,
judicialinterpretations, and formal amendments. Every constitution lays down a method for
itsamendment.
In case of the 1973 constitution, Articles 238 and 239 vest the constitutionamendment power almost
exclusively in parliament.

The two houses of parliament can amendany provision of the constitution by a two-third majority
and subject to the assent of the president. However, a constitutional amendment bill which seeks to
alter the limits of a provincemust also be passed by the provincial assembly concerned. Except for
this condition, parliamentis empowered to unilaterally amend any constitutional provision. Now a
pertinent question is, is there any limit on the constitution amending power of parliament?In this
connection, reference may be made to Article 239(5) of the constitution, which states
Noamendment of the constitution shall be called into question on any ground in any court. Clause 6

of the same article says “For the removal of any doubt it is hereby stated that there is no

limitation whatsoever on the powers of the Majlis-e-Shura (parliament) to amend any of the

provisions of the constitution”. Prima facie, the courts are not empowered to enquire into the

vires of a constitutional amendment; they can only interpret it.

But, we have seen anunprecedented move during the recent years that; Supreme Court of Pakistan
while taking theissue of the legitimacy of military courts established under the 21

st

constitutional amendment,

implicitly observed that; it is very much under the orbit of its powers to check the validity of
aconstitutional amendment.

Albeit, the recent development, if we go straight to the article 238 & 239 of the constitution.
Thefollowing questions emerge do parliament can change the federal character of the
constitution,abolish the parliamentary form of government or deprive citizens of their fundamental
rightsincluding the right to life simply by passing a bill by a two-third majority?While giving
parliament the power to alter the constitution, Articles 239 us

es the word “amend”.The lexical meaning of the word “amend” is to make minor improvements in a
document

through addition or deletion. This clearly means that any amendment to the constitution has to
bewithin its basic framework; otherwise it will not be minor. Thus parliament can introduce
minorchanges to the constitution; it cannot re-write or deface the constitution by changing its
essentialcharacter. It is ultimately for the courts to adjudicate whether any constitutional
amendmentconforms to the fundamental character of the constitution, as this involves
interpretation of theconstitution. If the courts determine that a constitutional amendment has the
effect of defacingthe constitution, they can ask parliament to undo the amendment for being ultra
vires to theconstitution.Though the courts have the power of judicial review, the same cannot be
exercised in anarbitrary fashion. If the law-

making power of parliament is not unlimited, the courts’ power to

review the laws passed by parliament is also not unlimited. Like other organs of the state, the
judiciary derives its powers from the constitution and the judges are as much under theconstitution
as anyone else. They can interpret and invalidate laws but they cannot themselvesassume the law
making function; nor can they confer that function on any person or institutionother than the
federal or provincial legislatures. Nor can the courts make constitutional what ismanifestly
unconstitutional. Sovereignty is located neither in parliament nor in the judiciary butin the
constitution itself.