Supreme Court: The Power of Judicial Review in Pakistan

 

The power of judicial review is a cornerstone of any democratic system, ensuring that the actions of government institutions are in line with the Constitution. In Pakistan, the Supreme Court holds the authority to exercise this power, making it a crucial institution in upholding the rule of law.

 

Historical Background of Judicial Review in Pakistan

Pakistan's journey towards establishing the power of judicial review can be traced back to its inception. The country's first constitution, adopted in 1956, recognized the Supreme Court as the highest judicial authority with the power of judicial review. However, it wasn't until the landmark case of Maulvi Tamizuddin Khan vs. The Federation of Pakistan in 1955, that the Supreme Court exercised this power for the first time.

In this case, the Supreme Court declared that the Constituent Assembly of Pakistan did not have the authority to frame the country's constitution, as it violated the principles of federalism and democratic governance. This landmark decision set an important precedent for judicial review and established the Supreme Court's role as the guardian of the Constitution.

 

The Constitution and Judicial Review

The power of judicial review in Pakistan is derived from the country's constitution. Article 199 of the Constitution of Pakistan grants the Supreme Court and High Courts the authority to exercise this power. The courts have the jurisdiction to examine the constitutionality of laws, executive actions, and government policies.

The Constitution of Pakistan also provides for the protection of fundamental rights. The Supreme Court, through its power of judicial review, ensures that these rights are upheld and protected. It acts as a bulwark against any actions that infringe upon the fundamental rights of the citizens.

 

Scope and Limitations of Judicial Review in Pakistan

While the power of judicial review empowers the Supreme Court to strike down laws and actions that are unconstitutional, it is not an absolute power. The court's authority is limited by the principles of separation of powers and the doctrine of parliamentary sovereignty.

The Supreme Court can only exercise judicial review when a case is brought before it. It cannot initiate a review on its own. Moreover, the court's jurisdiction is limited to constitutional matters and does not extend to policy decisions or matters of executive discretion.

 

Landmark Cases on Judicial Review in Pakistan

Over the years, the Supreme Court of Pakistan has delivered several landmark judgments that have shaped the legal landscape of the country. One such case is the Asma Jilani vs. Government of Punjab case in 1972. In this case, the Supreme Court declared the government's power to detain individuals without trial as unconstitutional, upholding the right to personal liberty.

Another notable case is the Zafar Ali Shah vs. Pervez Musharraf case in 2000. The Supreme Court declared the military takeover by General Pervez Musharraf unconstitutional, reaffirming the supremacy of the constitution and the rule of law.

 

Controversies Surrounding the Power of Judicial Review in Pakistan

The power of judicial review in Pakistan has not been without its controversies. Critics argue that the Supreme Court has at times overstepped its boundaries and encroached upon the domain of the executive and legislative branches. There have been instances where the court's decisions have been perceived as interfering in the political affairs of the country.

One such controversial case is the disqualification of Prime Minister Yousaf Raza Gillani in 2012. The Supreme Court disqualified Gillani from holding office for refusing to initiate corruption proceedings against then-President Asif Ali Zardari. Critics argue that the court's decision was politically motivated and undermined the principles of parliamentary democracy.

 

Criticisms and Debates on Judicial Review in Pakistan

The power of judicial review in Pakistan has sparked intense debates and discussions among legal scholars, politicians, and the general public. Some argue that judicial review is essential for safeguarding the rights of individuals and maintaining the balance of power. They believe that the judiciary should act as a check on the executive and legislative branches to prevent any abuse of power.

However, others contend that judicial review undermines the principles of democracy and popular sovereignty. They argue that unelected judges should not have the power to strike down laws passed by elected representatives. They believe that such decisions should be left to the elected branches of government.

 

Judicial Activism vs. Judicial Restraint in Pakistan

The power of judicial review in Pakistan has given rise to the debate between judicial activism and judicial restraint. Judicial activism refers to the court's willingness to intervene and take an active role in shaping public policy. Judicial restraint, on the other hand, advocates for a more limited role for the judiciary, deferring to the elected branches of government.

The Supreme Court of Pakistan has been at the center of this debate. Some argue that the court's activism is necessary to address issues of governance and ensure accountability. Others believe that the court should exercise restraint and leave policy decisions to the democratic process.

 

Importance and Implications of the Power of Judicial Review in Pakistan

The power of judicial review in Pakistan plays a crucial role in upholding the rule of law, protecting individual rights, and ensuring accountability within the government. It provides a mechanism for citizens to challenge unconstitutional actions and seek redress for grievances.

The decisions of the Supreme Court have far-reaching implications, setting legal precedents and shaping the political landscape of the country. They have the power to change the course of governance and impact the lives of millions of Pakistanis.

 

Conclusion and Future Prospects of Judicial Review in Pakistan

In conclusion, the power of judicial review in Pakistan's Supreme Court is a vital component of the country's democratic system. It serves as a check on the actions of the government protects individual rights, and maintains the balance of power. However, controversies and debates surrounding the court's decisions highlight the challenges and complexities of judicial review.

The prospects of judicial review in Pakistan will depend on striking the right balance between the judiciary, executive, and legislative branches. It is essential to ensure that the court's decisions are based on sound legal principles, without encroaching upon the domain of the elected branches. By doing so, the power of judicial review can continue to play a constructive role in the governance of Pakistan.