1-JUDICIAL REVIEW OF POLITICAL QUESTIONS 2- JUDICAL REVIEW AND PIL 3- JUDICIAL REVIEW AND JUDICIAL ACTIVISM.

DOCTRINE OF POLITICAL QUESTION.

POLITICAL QUESTION It is a constitutional question. Where a speaking answer is available in the Constitution. A question to be answered by the parliament. A dispute as to parliament and political executive. Discretional powers of the Constitutional entities.

CASES WHERE SPEAKING ANSWER IS AVAILABLE IN THE CONSTITUTION Appointment of the High and Supreme Court judges. Appointment and removal of the President and P.M. Appointment and removal of the Ministers. Appointment and removal of Governors. Regulations of FATA.

QUESTIONS TO BE ANSWERED BY THE PARLIAMENT. To make or repeal a law. To impose or withdraw tax. To approve Budget. Appointment and removal of President. Appointment and removal of P.M.

DISPUTE BETWEEN PARLIAMENT AND EXECUTIVE. Dispute between Parliament and President. Dispute between Senate and P.M/Cabinet. Dispute between Provincial Assembly and Governor.

 DISCRETIONAL POWERS OF THE CONSTITUTIONAL ENTITIES. Suo motto power of the Supreme Court. Discretional powers of the President[ appointments: Chiefs of defence forces, Governors; appointment of care taker govt.]. P.M. power to dismiss Assembly. Chief Ministers power to dismiss Provincial Assembly.

SOME CASES OF POLITICAL QUESTIONS

Mrlbury V Madison(1803) Chief Justice, John Marshall first used the term political question in 1803. Marbury was appointed as Justice of Pease on the last day of the going President. His letter of appointment was to be delivered subsequently. New President refused to deliver this letter to Marbury. Was refusal of the president a political question or legal question?

President Nixon Watergate Scandal[1974] Tapping of information of the Democrats from their office located in Watergate building. Question of impeachment of the President arose. An investigation commission was appointed before impeachment proceedings. President Nixon refused to handover tapes to the commission being president and not answerable to the commission. He argued it as executive privilege. Was it a political question?

Bush and Gore Case[ 2000]. Election 2000, problem of vote counting in Florida. The State Court ordered for re-counting of votes. Bush filed application to Supreme Court against the direction of the Court of Florida. Court stopped re-counting and loosing Bush won.. Was it a political question?

POLITICAL QUESTION BEFORE COURTS IN PAKISTAN

Dissolution of Assembly cases in Pakistan.

-Mulvi Tameez-ud-din case-- 1954. Governor General Gulam Muhammad dissolved Constituent AssemblySkinder Mirza dissolved National Assembly 1958[ Dosso case]. Yahya Khan dissolved National Assembly 1969 [Aasima Jilani case 1972] . General zia-ul- Haq dissolved Bhuttos Assembly.1977[Nusrat Bhutto case 1977] General zia-ul- Haq dissolved Junejo s Assembly 1985[Haji Saif Ullah case 1989] Gulam Ishaq dissolved BB s Assembly 1990. [ Ahamad Tariq Rahim case 1990 ] Gulam Ishaq dissolved Nawaz Sharif s Assembly 1993[ Nawaz Sharif case 1993]. Sabar Shah case 1994. Farooq Lagari dissolved BB s Assembly -1996[ Benazir Bhutto case 1995]. Pervaiz Musharif dissolved Nawaz Sharif s Assembly 1999[ Zafar Ali Shah case 2000].

Validation of amendments in the Constitution by the Courts. Pakistan Lawyer Forum case 2005.LFO, 2OO2 challenged.

MULVI TAMEEZ-UD-DIN CASE-- 1954. Mulvi Tameez-ud-Din was president of Constituent

Assembly. Govt. of India ( Amendment Act) 1954 was promulgated by Constituent Assembly where Governor Generals powers were reduced. Mr. Gulam Muhammed was Governor General who reacted and dissolved the Assembly. He issued Emergency Power Ordinance,1955 in this regard.

MULVI TAMEEZ-UD-DIN CASE-- 1954. Mulvi Tameez-ud-Din moved the Chief Court Sind. He pleaded for writ of prohibition : to restraint the Governor General from interfering with the exercise of his functions as President of Constituent Assembly. He pleaded for writ of quo warranto: to oust ministers of the Cabinet appointed by the Governor General.

GOVT. REPLIED Court has not any power to issue any writ. The section 223A which was inserted by the CA in the Govt. of India Act was not assented by Governor General. The Govt. of India ( Amendment Act) 1954 under which Governor Generals powers were reduced was also not assented by Governor General. Situation on ground The laws or any amendments made in Govt. of India Act,1935 were never sent the Governor General before for his approval. Governor General was not having power to dismiss Assembly and to issue Emergency Power Ordinance,1955 under Govt. of India Act,1935 . So many laws were operational which were not assented by the Governor General.

COURT,S DECISION Chief Court Sind held in favour of Mulvi Tameezud-Din. Emergency Power Ordinance, 1955 was invalidated Govt. filed an appeal to Federal Court headed by Justice Munir. Meanwhile Govt. made a reference for advice of the Federal Court. Due to problem of invalidation of the Ordinance.

FINAL DECISION OF THE FEDERAL COURT Chief Court Sind was not having jurisdiction to entertain the case. Law oh necessity {Kelson Theory)was held by the Court. Emergency Power Ordinance,1955 was validated.

PUBLIC INTEREST LITIGATION[PIL Petition are filed on behalf of the public. Authority: Art. 184(3). and Art. 199. Scope:
Political question litigations. Legislative judicial review cases. Administrative judicial review cases.

Who can file PIL - Any individual.

Political party. - Some NGO/ any Forum.

PUBLIC INTEREST LITIGATION CASES Shela Zia case 1994. Traffic muddle case Karachi-1997. Al Jehad Trust case- Appointment of judges case.- 1996 and 1997. Assad Ali case- Mr. Sajjad Ali Shah Case-1998.

JUDICIAL ACTIVISM

JUDICIAL ACTIVISM Judicial activism is a philosophy advocating that judges should reach beyond the Constitution to achieve results that are consistent with contemporary conditions and values. Most often, it is associated with (modern) liberalism that believes in broad interpretation of the Constitution which can then be applied to specific issues.

JUDICIAL ACTVISTS They take constitution as a living document. They believe that judges to have equal responsibility as to the public welfare. They give liberal interpretation as to the rights of the people.

JUDICIAL ACTIVISM VS JUDICIAL RESTRAINT

JUDICIAL RESTRAINT Judicial restraint means that judges should respect to the democratic process and stay out of policy debates if democracy is to thrive. Judicial restraint means that constitution should not be liberally interpreted to the derogation of the law of the parliament. If conflict comes parliament to be held supreme.

SOME DOCTRINES OF JUDICAL REVIEW AS TO JUDICIAL ACTIVISM VS JUDICIAL RESTRAINT

IMPLIED POWER DOCTRINE Judicial review powers( legislative side or cabinet policy) of the Superior Court is implied from the Constitution. Constitution does not clearly provides that who will interpret Constitution. It is implied principle that Superior Courts will interpret the Constitution. To which extent, the Courts will interpret has nowhere been mentioned in the Constitution. The believers of this doctrine say that Court should go to any extent to interpret Constitution to extent and to protect citizen rights.

DOCTRINE OF ORIGINAL INTENT When Courts interpret any law, original intent of the law should be seen. Plain common sense meanings of the text of the law to be read vis a vis Constitution. It can not be argued that actual meanings of the law are some what different to plain meanings of the text. A Law is a no law which is beyond the plain meanings of the Consitution. Where conflict in any two Articles of the Constitution, then to see preamble of the Constitution and intent of the framers of the Constitution. Take the Constitution as whole.

DOCTRINE OF STRICT NECESSITY Interpretation only when absolutely required. Avoid interpretation, if question could be resolved otherwise. Remand the case to the relevant forum. ( Supreme Court remanded Musharafs 27 Ordinances to the Parliament)

DOCTRINE OF PRESUMPTION OF CONSTITUTIONALITY Courts will presume that every law has been made in accordance with the Constitution. To get declared any law unconstitutional, some demonstration of its unconstitutionality shall be required. Some one is required to be effected by the unconstitutional law.