1. Judicial Review” is a Check and Balance Judicial Review is one of the check and balance on the separation of power; the power of the judiciary to supervise the legislative and executive branches of a state. (Wikipedia) 2- Concept of “Judicial Review” Judicial review is the process whereby an apex court interprets a law and determines its constitutional status. If the judiciary finds that a given piece of legislation or executive is in conflict with any provision of the constitution, it may strike down the same. (Book: Judicial Review by Justice (R) Fazal Karim) Power of the court to determine the legitimacy of the acts of the executive and legislative branches of the Government. (Wikipedia) 3- Origin of “Judicial Review” William Marbury Vs James Madison “Acts of Congress in conflict with the Constitution are not law and therefore are non-binding to the courts, and that the judiciarys first responsibility is always to uphold the Constitution. If two laws conflict, the court bears responsibility for deciding which law applies in any given case.” 4- Divine Origin of “Judicial Review” O ye who believe Obey Allah, and obey the Messenger, And those charged With authority among you. If you differ in anything Among yourselves, refer it To Allah and His Messenger, If you do believe in Allah And the Last Day: That is the best, and most suitable For final determination. (Sura 4:59) 5- “Judicial Review” under the Constitution of Pakistan Though no express provision as to “Judicial Review” has been given in the Constitution of Pakistan, however, Supreme Court of Pakistan may under Article 184(3) and Any High Court may under Article 199 exercise the power of judicial review. 6- Legislative acts subject to judicial review under Article 184(3) or Article 199 Firstly Any law made in conflict with any of the fundamental rights granted by constitution. (Violation of Article 8 of Constitution) Secondly Any law made repugnant to the injunctions of Islam. (Article 227 of the Constitution) Legislative acts subject to judicial review under Article 184(3) or Article 199 Thirdly Any law inconsistent with the basic character of the constitution. Fourthly Any law creating confliction between two government 7- Executive acts subject to judicial review under Article 184(3) or Article 199 Following are the grounds to exercise power of judicial review against an administrative action if they are resulting injustice: Illegality: Illegality means the decision-maker must understand correctly the law that regulate his decision making power and must give effect to it . Irrationality Irrationality means unreasonableness. Impropriety (Reference: 2014 SCMR 676) 8- Modes of exercising Powers of Judicial Review under Constitution The Supreme Court of Pakistan or High Court may exercise the power of judicial review by issuing a: Writ of Mandamus Writ of Prohibition Writ of Certiorari Writ of Habeas Corpus Writ of Quo Waranto Writ of Mandamus A writ of Mandamus is a command issued to a public authority to do a certain act which he is bound to do. Writ of Prohibition A writ of Prohibition is a command issued to a public authority to refrain from doing anything which he is not permitted by law to do so. Writ of Certiorari A writ of Certiorari means to declare that an act of a public authority is without lawful authority and is of no legal effect Modes of exercising Powers of Judicial Review under Constitution Writ of Habeas Corpus A writ of Habeas Corpus means to direct that a person may be brought before it so that the court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Writ of Quo Waranto A writ issue to requiring a person holding a public office to show under what authority of law he claims to hold that office. 9- Difference Between Article 184(3) & Article 199 The main difference between Article 184(3) and Article 199 is that a Supreme Court may exercise powers as mentioned under article 199 only when there is a matter of public importance. 10- Famous Cases on “Judicial Review” Zafar Ali Shah Case (2000 SCMR 1137) Superior Courts have the right to interpret the Constitution or any legislative instrument Court has power of judicial review to ensure that all persons are able to live securely under the rule of law. Court can exercise power of judicial review to protect fundamental rights of people. N.R.O Case (PLD 2010 SC 265) Legislature is assigned the task of law making, the executive to execute such laws and the judiciary to interpret the laws---None of the organs of the State can encroach upon the field of others. Inconsistency or contravention of a law passed, or the existing law, shall be examined to the extent of violation of fundamental rights and such laws are not void for other purpose 11- Comparison with other Countries In British system the courts can only interpret the law. However, in Pakistan Court not only can interpret the law but also set aside the same. Unlike India and America, the Constitution of Pakistan does not confer the powers of judicial review in express term. 12- “Judicial Review” Versus “Judicial Activism” Judicial Review means where legislature or executive exceeds the powers given to it by constitution, the judiciary can prevent it by declaring their act or action ultra-vires. Whereas Judicial Activism means readiness and quickness of the judiciary to perform the act of Judicial review. Powers of Judicial Review 13- Conclusion.....
Posted on: Thu, 25 Dec 2014 21:40:03 +0000
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