Judicial Review: An Aggressive Exercise?
Black’s Law Dictionary defines judicial activism as the philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions. [1] In contrast, judicial review has been defined by Black’s law Dictionary as a court’s power to review the actions of other branches or levels of government, especially the power to invalidate legislative and executive actions for being unconstitutional.[2]
Does Pakistan’s Constitution provide Supreme Court enough power to set aside Acts of Parliament?
Pakistan has a federal Constitution, which distributes powers among the center and the provinces.[3] There are some restrictions under the Constitution on the powers of both federal and provincial legislatures. The first restriction is drafted in Article 8 which states that,
“…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.’’[4]
Another restriction is under Article 227 which states that,
“All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the holy Quran and Sunnah…and no law shall be made which is repugnant to such injunctions.’’[5]
The power of judicial review can be exercised through these Articles. Under Article 239(5), no Amendment made by the Parliament can be called into question, but courts can ask Parliament to undo the Amendment for being ultra vires to the Constitution[6] and even though the courts have this power of judicial review, the same cannot be exercised in an arbitrary fashion, as was also discussed in the famous US case of Marbury v Madison [7][8] in relation to the tussle between the institutions and Montesquieu’s doctrine of separation of powers – if Parliament does not have unlimited powers, then the power of courts to review the law is also not infinite.
Validity of judicial activism should only depend on whether it promotes democratic government
Judicial intervention in administrative and legislative affairs is conjectured on the basis of whether judicial activism integrates the population or nurtures constitutional culture among them. Conversely, the idea that judicial activism is impeding democratic institutions is often rejected. The generally accepted view is that judicial review may be required for ensuring the proper functioning of the executive and the legislature. Historically, it is also true that judicial review has been used as a guise to discredit and erode democratic norms. Pakistan has been ruled under a coup d’etat for almost 36 years which clearly shows how military rule can be legitimized through judicial interference.
Aggressive use of powers in the past
The most staggering demeanor of judicial activism can be seen in the judgment of Chief Justice Muhammad Munir in the Maulvi Tamizuddin Khan case,[9] where the Governor General dissolved the Constituent Assembly despite having no express powers in the Constitution to do so and invalidated all Acts that had been passed without his assent. This judgment was retrogressive and put the state on the track of dictatorship. Justice Munir later testified that the decision taken in the Maulvi Tamizuddin case was political in nature and himself established that if the Constituent Assembly was not sovereign, then the Governor General was also not sovereign.
In the Usif Patel case,[10] detainees challenged the Sind Goondas Act 1952 for the reason that it was passed without the Governor General’s consent and the court ruled in their favour. The judgment was reversed by Justice Munir in the Governor General Reference case [11] who decided it in favour of the Governor General. Such clashes between the trichotomy of powers serve as nails in the coffin of democracy.
The most controversial judgment was handed out in the Dosso case, where Justice Munir, ignoring all national laws, legitimized martial law by stating that that a ‘victorious revolution’ or successful coup was a recognized method of international law for altering the Constitution. He relied upon Kelsen’s Theory and considered it a universally accepted doctrine. This case was followed as precedent for fourteen years whereby the court used its power in an arbitrary manner and during this time all fundamental rights could be suspended. If cases of public importance were decided under Article 184(3), there were serious ambiguities as to how judges interpreted the term ‘public importance’. Justice Munir also drafted the Law Continuance Order 1958 and published an article in the Pakistan Times on 11 Nov 1958 which further affirmed his views.[12]
The Asma Jilani case[13] negated Justice Munir’s assumptions adopted in the Dosso case and Justice Hamood ur Rehman redefined the doctrine of necessity and martial law. This is how Pakistan was ruled under the doctrine of necessity and judicial activism for 36 years.
We have witnessed the excessive exercise of judicial interference in political affairs not just in the era of Chief Justice Muhammad Munir but also during the tenure of Chief Justice Saqib Nisar who has taken many political initiatives that fall under the ambit of the administrative branch, for instance, the Diamer Bhasha and Mohmand dam fundraising campaign and the constitution of Joint Investigation Teams instead of cases being handed over to other law enforcement agencies for investigation.
Abaham Lincoln said, “We cannot escape history.” But after Justice Nisar’s retirement, the Supreme Court has the opportunity under the legacy of Chief Justice Asif Saeed Khosa to rebut this statement, brandish judicial self-restraint instead of judicial activism and use its power to promote democratic growth.
———-
References:
[1] Bryan A.Garner. Black’s Law Dictionary, 7th edition, ISBN 0-314-22664-0
[2] Ibid
[3] https://pakistanconstitutionlaw.com/article-142-subject-matter-of-federal-and-provincial-laws/
[4] https://pakistanconstitutionlaw.com/article-8-laws-inconsistent-with-or-in-derogation-of-fundamental-rights-to-be-void/
[5] https://pakistanconstitutionlaw.com/article-227-provisions-relating-to-the-holy-quran-and-sunnah/
[6] https://pakistanconstitutionlaw.com/article-239-constitution-amendment-bill/
[7] Marbury v Madison 5 U.S. (1 Cranch) 137 (1803)
[8] Hamid Khan, Comparative Constitutional Law, 2nd revised edition, Pakistan Law House. p. 277
[9] Federation of Pakistan v Maulvi Tamizuddin Khan: PLD 1955 FC 240
[10] Usif Patel and 2 other appellants v the Crown-respondent: PLD 1955 Federal Court 387
[11] Reference by His Excellency Governor-General: PLD 1955 FC 435
[12] State v Dosso: PLD 1958 SC 553
[13] Asma Jilani v Federation of Pakistan: PLD 1969 LAH 786
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
