Marbury v. Madison is considered a landmark decision of the Supreme Court of the United States, sometimes referred to as the most important decision in American constitutional law. The principles laid down in this case over two centuries ago have significantly contributed to the development of Pakistan’s constitutional law and towards the independence of Pakistan’s judiciary, including the power of judicial review, the doctrine of separation of powers and the supremacy of the written Constitution.
The case resulted from a petition to the Supreme Court of the United States by William Marbury, who had been appointed as Justice of the Peace for the County of Washington in the District of Columbia by President John Adams. The seal of the United States was affixed to Marbury’s commission by the Secretary of State, James Madison, but the commission was not delivered to him before the expiration of Adams’ term as President. Marbury petitioned the Supreme Court to force Madison to deliver the commission to him.
John Marshall, Chief Justice of the Supreme Court, identified three main issues in the case.
- The first issue was whether Marbury had a right to the commission he was demanding.
- The second issue was whether the laws of the country afforded Marbury a remedy if he had a right to the commission and that right had been violated.
- The third and most important issue was whether it was within the Supreme Court’s jurisdictional power to issue a writ of mandamus as the remedy sought by Marbury.
The Supreme Court decided the first issue by declaring that since the commission had been signed by the President and sealed by the Secretary of State, Marbury had been appointed to office. Further, it was held that since the law creating the office gave the officer a right to hold the office for five years and that an appointment was not revocable, the withholding of the commission by Madison was an act not warranted by law but violative of a vested legal right belonging to Marbury.
On the second issue, the Supreme Court held that since the government of the United States had been termed a government of laws and not of men, the laws must have furnished a remedy for the violation of a vested legal right. The Supreme Court went on to conclude that since Marbury had a legal title to the office, he had a consequent right to the commission. Madison’s refusal to deliver the commission was held to be a plain violation of Marbury’s right, for which the laws of the country afforded him a remedy.
It was while deciding the third issue that the Supreme Court laid the foundation for the exercise of judicial review. Article III, Section 2 of the United States Constitution provides that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party; in all other cases, the Supreme Court shall have appellate jurisdiction. However, the Judiciary Act of 1789, which established the judicial courts of the United States, had given the Supreme Court the authority to issue writs of mandamus to public officers. This had led to a conflict between a provision of the Constitution and an act of the legislature.
While attempting to resolve this conflict, the Supreme Court established the supremacy and paramountcy of the written Constitution over any other law ordinarily passed by the legislature and declared any law repugnant to the Constitution to be void. It was decided that the provision of the Judiciary Act which enabled Marbury to bring his claim to the Supreme Court was unconstitutional since it purported to extend the Supreme Court’s original jurisdiction beyond that which Article III, Section 2 of the Constitution had envisaged.
The Power of Judicial Review
Marbury’s greatest contribution to the development of Pakistan’s constitutional law was the creation of the power of judicial review. Under judicial review, actions undertaken by the executive and legislative branches of the government are subject to review by the judicial branch. Through the exercise of this power, a court may invalidate or strike down laws that are in conflict with the terms of a written Constitution. The power of judicial review was laid down in Marbury by Chief Justice John Marshall in the following words:
“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”
In the context of Pakistan, the power of judicial review has been conferred upon the courts through Articles 184 (3) and 199 of the Constitution of Pakistan 1973. Article 184 (3) gives the Supreme Court the power to make an order under its original jurisdiction regarding questions of public importance with reference to the enforcement of any of the fundamental rights under the Constitution. Article 199 gives the High Courts the power to make the following orders under writ jurisdiction:
a. An order directing a person performing functions in connection with the affairs of the federation, a province, or a local authority to refrain from doing anything that he or she is not permitted to do by law, or to do anything that he or she is required to do by law;
b. An order declaring that any act done or proceeding undertaken by any such person has been done or undertaken without lawful authority and is of no legal effect;
c. An order directing that a person in custody be brought before the court so that the court may satisfy itself that the person is not being held in custody without lawful authority or in an unlawful manner; and
d. An order requiring a person holding or purporting to hold a public office to show under what authority of law he or she claims to hold that office.
The power of judicial review was exercised by the Supreme Court of Pakistan for the first time in Federation of Pakistan v. Moulvi Tamizuddin Khan. Moulvi Tamizuddin Khan challenged the dissolution of the Constituent Assembly by an order of the Governor General. The challenge was initially upheld by the Sindh Chief Court, but the Federal Court held that the Act of the legislature which conferred the power upon the Sindh Chief Court to issue the writ was constitutionally invalid.
There have been instances of judicial review of discretionary executive powers in cases involving the dissolution of Assemblies under the now defunct Article 58(2)(b) of the Constitution. In Khawaja Muhammad Sharif v. Federation of Pakistan, the Lahore High Court declared the President’s Order dissolving the National Assembly to be unconstitutional and void. The decision was later upheld by the Supreme Court.
More recently, in District Bar Association, Rawalpindi v. Federation of Pakistan, a decision that has been criticized for upholding the establishment of military courts as constitutionally valid, the Supreme Court of Pakistan, while dismissing the petitions challenging the Twenty First Amendment to the Constitution, held in a majority judgment that any order passed, decision taken or sentence awarded by military courts would be subject to judicial review by High Courts and the Supreme Court on the grounds of being coram non judice (without a judge), being without jurisdiction, or suffering from mala fide intent.
Why Judicial Review Is Important
The power of judicial review serves as one of the checks and balances in the separation of powers and ensures that the executive and legislature do not exceed their authority. As per US Chief Justice, John Marshall, it is the duty of the courts to interpret the provisions of a written Constitution and uphold it as the paramount law of the land. In order to preserve the sanctity of the written Constitution, judges in Pakistan have rightfully resorted to the exercise of judicial review to invalidate laws interpreted by them to be repugnant to the provisions of the written Constitution.
Critics in Pakistan have termed this power as “undemocratic”, arguing that it vests in an unelected judiciary the power to review and declare void the actions of an elected legislature. However, it may be argued that this criticism is without merit since the judiciary has been tasked with interpreting the law and upholding the sanctity of the Constitution. Justice (R) Fazal Karim writes that the courts in Pakistan are not concerned with the goodness or badness of impugned public actions, instead, their sole concern is with the constitutionality and lawfulness of any public action. The power of judicial review is given to the courts in Pakistan by the Constitution itself, which reflects the will of the people. Therefore, this power can be termed as a democratic power. Moreover, the legislature cannot be allowed to arbitrarily amend any provision of the Constitution as it deems fit – the courts must interfere where necessary in order to uphold the principles of natural justice, equity and good conscience.
The Doctrine of Separation of Powers
The second contribution of Marbury to the development of Pakistan’s constitutional law was to provide a model for separation of powers by defining the boundary between the constitutionally separate executive and judicial branches of the American form of government. The need for separation of powers was first identified by James Madison, often referred to as the father of the United States Constitution. Madison sought to strike a balance between empowering the government sufficiently for its tasks while at the same time limiting it from overreaching the individual. In Federalist No. 51, he noted that the partition of power among the several departments of the government was necessary as a means of keeping each other in their proper place.
Article 175 (3) of the Constitution of Pakistan 1973 envisages the separation of powers by providing that the judiciary shall be separated progressively from the executive. The separation of powers was defined in Flying Cement Company v. Federation of Pakistan through the identification of the roles of each branch of government. The Lahore High Court held that the primary function of the legislative branch was to legislate the laws, the primary function of the executive branch was to execute the laws and the primary function of the judicial branch was to judge the laws. In Asadullah Khan Tareen v. Government of Balochistan Health Department, the Balochistan High Court held that the Constitution had made it the exclusive responsibility of the judiciary to ensure the sustenance of the system of separation of powers based on checks and balances. In Shaheen Akhtar v. Government of Punjab, the Lahore High Court held that the power of judicial review was a great weapon in the hands of judges, but judges ought to have observed constitutional limits in the form of separation of powers set by Pakistan’s parliamentary system on the exercise of such beneficial power.
The Supremacy of the Written Constitution
The third and final contribution of Marbury to the development of Pakistan’s constitutional law was the establishment of the supremacy of the written Constitution over any other law passed by the legislature. US Chief Justice, John Marshall, noted in his decision that all those who had framed written Constitutions contemplated them as forming the fundamental and paramount law of the nation. Consequently, the theory of every such government must have been towards an Act of the legislature, repugnant to a written Constitution, being void. Therefore, it was held in Marbury that any act of the legislature repugnant to the written Constitution would not bind the courts and neither would it oblige them to give it effect.
The supremacy and paramountcy of the written Constitution has also been duly laid down by the courts in Pakistan. In Shirin Munir v. Government of Punjab, the Supreme Court of Pakistan held that the written Constitution was the source from which all governmental power emanated, and it defined its scope and ambit so that each functionary acted within his or her respective sphere. In Muhammad Rafique v. Muhammad Ismail, the Sindh High Court held that in all common law jurisdictions like Pakistan having a written Constitution, it was the duty of the courts to carry out and interpret the intention of the Parliament as envisaged in a statute or Act of Parliament, unless the same had been ultra vires to the Constitution itself.
  5 U.S. 137.
  PLD FC 240.
  PLD Lahore 725.
  PLD SC 401.
 Karim Fazal, “Judicial Review of Administrative Action” 10.
 Ibid. 1.
 Ibid. 1.
  PLD Lahore 35.
  PLC C.S. 195.
  PLC C.S. 70.
  PLD SC 295.
  PLD Karachi 260.
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