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 is in
conflict with any provision of the constitution, it may
strike down the same.

The power of judicial review is exercised differently in

different political systems.
In countries like the United Kingdom where the
constitution is largely unwritten and unitary in character
and parliament is sovereign,
The courts can declare an act of parliament to be
incompatible with the constitution, but they cannot
invalidate a law for being inconsistent with the
constitution. In other words, the judiciary can only
interpret the constitution.

The situation is different in countries where a written and

federal constitution limits the powers of parliament. For
instance, in the USA, the Supreme Court can strike down
legislation enacted by Congress if it finds the same to be
incompatible with the constitution.
In Germany, the Constitutional Court is empowered to
shoot down not only ordinary laws but also constitutional
amendments for being inconsistent with the fundamental
character of the constitution.

In the neighboring India, there has been a long tussle

between parliament and the Supreme Court on the scope
and limits of judicial review.
The twenty-fourth amendment to the constitution passed
in 1971 authorized parliament to amend any provision of
the constitution. However, the Supreme Court
subsequently declared that while parliament was
competent to amend any provision of the constitution, any
amendment had to conform to the basic framework of the
constitution.

This led the government of Prime Minister Indra Gandhi

to introduce the forty-second amendment to the
constitution during the proclamation of emergency, which
stripped the apex court of the power of reviewing an
amendment to the constitution. However, the forty-third
and forty-fourth amendments undid the provisions of the
forty-second amendment regarding powers of the
Supreme Court to judge the validity of constitutional
amendments.
Coming to our own political system, the two pertinent
questions are Does the judiciary enjoy the power of
judicial review? If the answer is in the affirmative, what
are the scope and limits of this power?
As in case of countries like India and the US, Pakistan has
a federal constitution, which distributes powers between
the centre and the provinces.

LEGISLATION
Under Article 142 of the constitution, the federal
legislature or parliament can make laws on subjects
enumerated in the federal legislative list and the
concurrent legislative list.
Similarly, provincial legislatures are competent to
legislate on subjects falling within their sphere of powers.
If we go by the book, neither parliament nor a provincial
legislature can encroach upon the other's legislative
powers.
The constitution also places some restrictions on the
powers of both federal and provincial legislatures.
In the first place, no law can be made which is in conflict
with any of the fundamental rights granted by the
constitution to the citizens. In this respect, Article 8 of the
constitution states “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.”
In the second place, no law can be made which is
repugnant to the injunctions of Islam. In this connection,
Article 227 of the constitution stipulates “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.”
In the third place, parliament cannot make any law which
is inconsistent with the basic character of the constitution
—the fundamental law of the land. There are thus four
main restrictions on the legislative powers of parliament.
It cannot, except when a proclamation of emergency is in
force, legislate on provincial subjects; and its laws cannot
be incompatible with fundamental rights, Islamic
injunctions and the basic character of the constitution
itself.
It is from these restrictions on the legislative competence
of parliament that the power of judicial review follows.

The superior judiciary can invalidate an act of parliament

that is beyond its legislative competence for any of the
four reasons mentioned in preceding paragraphs. In other
words, parliament in Pakistan is not sovereign. Rather its
powers are restricted by some written provisions of the
constitution. If these powers are over-stepped, the
judiciary can be moved to get the grievances of the
aggrieved party redressed.
Here it seems pertinent to mention that the constitution of
Pakistan, like Indian and American constitutions, does not
confer the power of judicial review on the judiciary in
express terms. The constitution does not state that a high
court or the Supreme Court can strike down a law passed
by parliament or a provincial assembly. What the
constitution confers on the superior judiciary is the power
to interpret the constitution. It is from this function of the
judiciary that the power of judicial review follows. While
interpreting some provisions of the constitution, the courts
may find that a particular law is in conflict with those
provisions. Since the constitution is the fundamental law
of the land, any law which conflicts with it shall be void.
The legislature has to amend or repeal it.
As a former judge of the US Supreme Court once said
“We [judges] are under the constitution. But the
constitution is what we say it is.” The judiciary does not
make laws but interprets laws—ordinary as well as
constitutional. If the judges find a piece of legislation to
be unconstitutional, it has to be removed from the statute
book.
Thus the answer to our first question whether the
judiciary in Pakistan has the power of judicial review is in
the affirmative. Let's turn to the second question
regarding the scope and limits of this power.
No constitution is static. Rather every constitution grows
through conventions, judicial interpretations, and formal
amendments. Every constitution lays down a method for
its amendment. In case of the 1973 constitution, Articles
238 and 239 vest the constitution amendment power
almost exclusively in parliament. The two houses of
parliament can amend any provision of the constitution by
a two-third majority and subject to the assent of the
president.
However, a constitutional amendment bill which seeks to
alter the limits of a province must also be passed by the
provincial assembly concerned. Except for this condition,
parliament is empowered to unilaterally amend any
constitutional provision. A pertinent question is Is there
any limit on the constitution amending power of
parliament? In this connection, reference may be made to
Article 239 (5) of the constitution, which states No
amendment of the constitution shall be called into
question on any ground in any court. Clause 6 of the same
article says For the removal of any doubt it is hereby
stated that there is no limitation whatsoever on the powers
of the Majlis-e-Shura (parliament) to amend any of the
provisions of the constitution.
Prima facie, the courts are not empowered to enquire into
the vires of a constitutional amendment. They can only
interpret it. But does it mean that parliament can change
the federal character of the constitution, abolish the
parliamentary form of government or deprive citizens of
their fundamental rights including the right to life simply
by passing a bill by a two-third majority?
While giving parliament the power to alter the
constitution, Articles 239 uses the word “amend”. The
lexical meaning of the word “amend” is to make minor
improvements in a document through addition or deletion.
This clearly means that any amendment to the constitution
has to be within its basic framework, otherwise it will not
be minor. Thus parliament can introduce minor changes
to the constitution; it cannot re-write or deface the
constitution by changing its essential character. It is
ultimately for the courts to adjudicate whether any
constitutional amendment conforms to the fundamental
character of the constitution, as this involves
interpretation of the constitution. If the courts determine
that a constitutional amendment has the effect of defacing
the constitution, they can ask parliament to undo the
amendment for being ultra vires to the constitution.
Though the courts have the power of judicial review, the
same cannot be exercised in an arbitrary fashion. If the
law-making power of parliament is not unlimited, the
courts' power to review the laws passed by parliament is
also not unlimited. Like other organs of the state, the
judiciary derives its powers from the constitution and the
judges are as much under the constitution as anyone else.
They can interpret and invalidate laws but they cannot
themselves assume the law making function; nor can they
confer that function on any person or institution other
than the federal or provincial legislatures. Nor can the
courts make constitutional what is manifestly
unconstitutional. Sovereignty is located neither in
parliament nor in the judiciary but in the constitution
itself