This article explores the doctrine of judicial review in Pakistan. Following a brief introduction, it traces the doctrine’s origins. It then discusses the jurisdiction of the Supreme Court and the High Courts of Pakistan under the Constitution. With the help of case-law, it explores the evolution of judicial review in Pakistan, including the doctrine’s role in the dissolution of Assemblies. Finally, it considers the implications and repercussions that judicial review entails.
Judicial review is a doctrine related to the judiciary’s power to ascertain the constitutional validity of laws and the legality of decisions made by public bodies. It is an exercise under which executive and legislative actions are subject to review by the judiciary. It is concerned with:
- the constitutional validity of any law, be it primary or subordinate legislation; and
- the constitutional validity or lawfulness of a decision, action or inaction of a person or body in relation to the exercise of a public function.
According to US Supreme Court Justice Iredell, the power of judicial review or the authority to declare legislative enactments void is “…of a delicate and awful nature.”
Origins of Judicial Review
James Madison identified the dilemma of constitutionalism in terms of how to empower the government sufficiently for its tasks and at the same time limit it from overreaching upon the powers of an individual. In Federal Paper No. 51, Madison observed the following:
“It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal control on government would be necessary. In framing a government which is to be administered by mean over men, the greatest difficulty lies in this: you must first enable the government to control the governed and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”
The solution to such difficulty was found to be in the creation of a limited government and in giving the courts the power of judicial review. Alexander Hamilton, another American Founding Father, said the following in Federalist paper No. 78:
“The complete independence of the courts of justice is peculiarly necessary in a limited constitution. By a limited constitution, I understand one which contains specific exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
Under the landmark US case of Marbury v. Madison, which introduced the power to determine the validity of legislative acts, a written Constitution was held to be the supreme law of the country. It also held the following:
“…consequently, the theory of every such government must be such that an act of Legislature, repugnant to the Constitution is void.”
The Supreme Court and High Courts of Pakistan have the authority of judicial review under Articles 184(3) and 199 of the Constitution of Islamic Republic Of Pakistan 1973.
Judicial review in Pakistan is derived from the doctrine of judicial review in England, which is based on the doctrine of ultra vires, meaning “beyond power”. Since the powers exercised by public office holders are restricted by law, any act beyond those restrictions is ultra vires to the Constitution and can be questioned in court.
The Evolution of Judicial Review and its Present State
The definition of judicial review can vary across different governments. In considering the scope of judicial review, a broad distinction must be drawn between ministerial, legislative and administrative powers on one hand and judicial powers on the other. The validity of the exercise of ministerial, administrative and legislative powers that affect the legal interest of individuals is always open to challenge in the courts, unless judicial review has been excluded, directly or indirectly, by the relevant statute. The executive findings or orders cannot be upheld on the grounds that they are res judicata (matters already judged).
Since early times, English common law courts have asserted the right to determine the proper jurisdiction of courts administering other systems of law and containing them within that jurisdiction through writs of prohibition. But it was not until the seventeenth century that the modern conception of judicial review emerged. The distinction between ‘excess of jurisdiction’ and ‘erroneous exercise of jurisdiction’ was drawn in cases where a lower statutory tribunal was directly attacked through the writ of certiorari.
The Constitution of Pakistan has been modeled partly on the American Constitution and partly on the British Constitution. Our Constitution prescribes a limited government. The principle of judicial review was first added to the Constitution in 1962. Article 199 of our present Constitution is the successor to Article 98 of the 1962 Constitution. It was introduced without any material change to the substance or language of the original provision. In terms of its extent and limits, Article 199, though comparable with the British writ jurisdiction, is significantly different. Nonetheless, the judgments of English courts regarding the extent and limits of writ jurisdictions can and do help Pakistani courts in the interpretation of Article 199. Reference may be made to the precedents in Presiding Officer v. Sadruddin1, Muhammad Hussain v. Sikandar2, Jamal Shah’s case3 and Rahim Shah’s case4.
Almost all judicial review questions, even when the constitutional validity of a legislative enactment is challenged, arise out of administrative actions. This is clearly reflected in the language of Article 199. Under the power of judicial review, courts can direct a person performing functions in connection with the affairs of the federation or a province, to do something that they are required to do by law or not do something that the law prohibits them to do, or declare such an act illegal. Courts can also inquire about whether a person in custody is being held lawfully and can require a person holding a public office to prove the authority under which they claim to have acted.
All executive and administrative authorities derive their powers from the Constitution or laws made under the Constitution and conferred upon them expressly or by necessary implication. Thus, when an administrative authority takes action under the law, it can be questioned about whether it has acted intra vires or ultra vires to the Constitution, or whether the law giving them the power to act is constitutionally valid. This is because it is a basic rule of constitutional law that a constitutionally invalid or ultra vires law, be it a result of primary or subordinate legislation, is incapable of conferring any jurisdiction or power.
Exercise of Judicial Review Jurisdiction
In the exercise of their judicial review jurisdiction, courts are concerned with the lawfulness of the actions of public authorities. They are primarily concerned with “questions of law” and give scant regard to “questions of fact”. In the Maulvi Tameez ud din case, the then Governor General dissolved the Constituent Assembly of Pakistan. The action was successfully challenged in Sindh High Court. On appeal, the Federal Court held that the act, which conferred the power to issue the writ, was constitutionally invalid. The dissolution of Assembly cases, namely the Ahmad Tariq Rahim case, the Mian Nawaz Sharif case and the Benazir Bhutto case illustrate this point.
The expressions “without lawful authority” and “of no legal effect” are expressions of art. The constitutional basis of the court’s power to reverse is that the impugned action “is unlawful on the ground that it is ultra vires”. Thus, in the field of judicial review, the word “lawful” has a technical meaning. When it is said that a person has acted unlawfully, it means that he or she has acted beyond the powers conferred to him or her by law. When the question is regarding the validity of an administrative action, the court considers whether the decision-maker exceeded his or her statutory powers and thus acted unlawfully.
Article 199 has also effectively drawn a distinction between the terms ‘judicial’, ‘quasi-judicial’ and ‘administrative’ for the purposes of the High Court’s judicial review power. The court is not to enter into that ambiguous distinction; it is only concerned with the lawfulness of the impugned action.
Under Article 199, judicial review can question the validity of legislation (primary or subordinate) as well as administrative action. Although Pakistani courts have not recognized the ‘basic structure’ doctrine, they have consistently held (in the Abdul Wali Khan case and Pakistan Lawyers Forum v. Federation of Pakistan) that a constitutional amendment can only be challenged if it has been enacted in an unconstitutional manner.
In the exercise of its judicial review jurisdiction, the High Court is only concerned with the lawfulness of the actions of public officers. Public officers are accountable to the Parliament for their policies and to a court for the lawfulness of their actions.
Where an administrative or executive officer acts under the law, a High Court will control the action by an appropriate order if the officer:
- acts beyond the law, that is, exercises jurisdiction not vested in him or her by the law;
- wrongly denies or omits to exercise jurisdiction; or
- materially departs from a law which prescribes the manner in which to act.
Judicial review of discretionary executive powers reached a watershed moment during cases involving the dissolution of Assembly under the former Article 58(2)(b) of the Constitution. In the first case, namely, Khawaja Muhammad Sharif vs. Federation, the Lahore High Court declared the President’s Order dissolving the National Assembly to be unconstitutional and void. The decision was upheld by the Supreme Court which stated the following:
“The President cannot exercise his powers…… on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature…… His action must appear to be called for an justifiable under the constitution if challenged in a court of law.”
- Judicial Review in National Security and Emergency Matters
In these situations, the court must observe the limits dictated by law and common sense, but at the same time they must not abdicate their judicial function. The Farooq Ahmad Khan Laghari case is a striking example illustrating the interference of courts in appropriate cases. The case of Secretary of State vs. Rehman is an illustration of national security in the context of international terrorism.
- Judicial Review and National Supremacy
Even those who have criticized the concept of US federal courts being able to judicially review Congressional acts opine that the concept is soundly based in the ‘supremacy clause’ – the clause that makes the US Constitution and constitutional laws and treaties the supreme law of the land.
Courts are the judicial organ of the state and are so recognized by the Constitution of the Islamic Republic of Pakistan as well. The system of government under this Constitution is democracy and courts are an integral part of this democratic system.
In order to understand the concept of judicial review of administrative action and determine its true scope and extent, the concept of jurisdiction, in its various aspects, must be clearly understood. This is because the courts, exercising the power of judicial review, are not only judges of the jurisdiction of other statutory authorities, but also judges of their own jurisdiction, since the judiciary is an independent branch of the government.
Judicial Review of Public Actions by Fazal Karim
 PLD 1955 F.C. 240
 PLD 1976 SC 57
 PLD 2005 SC 719
 PLD 1988 Lah. 725
 PLD 1999 SC 57, 178-9
 (2002) 1 All ER 122
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.