Judicial Review

JUDICIAL REVIEW

• JUDICIAL
• REVIEW
 JUDICIAL

Judicial means by Judiciary.

 Review

Re means again.
View means to see;
to look.
Organs of State
Parliament
Executive
Judiciary
Action of Legislature ?
Actions of
Legislature are
called : Statutes/
laws
Actions of Executive ?
Actions of Executive :

Policies
Actions of Judiciary ?
Actions of Judiciary:

Decisions/Judgments
Which will review
actions of the others and
why?
Legislature
Executive
Judiciary
Difference between:

Review
Judicial Review
What to review by
judiciary ?
 What to review by judiciary ?

• To review its own

actions/decisions.
or
• To review actions or decions of
the other organs of state.
Judicial Review
• When judiciary reviews
actions of the other
organs of state. It is
called judicial review.
Review:
• When judiciary or any other
decision making body reviews
its own decisions, it is called
review.
KINDS OF JUDICIAL REVIEW
 KINDS OF JUDICIAL REVIEW
1- Judicial Review of the Legislative
Actions
2- Judicial Review of the Executive
Actions
3- Judicial Review of the
Administrative Actions
Which Court/s have
Judicial Review
Power?
 JUDICIAL REVIEW BY

• High Courts.
• The Supreme Court.
EVOLUTION OF THE CONCEPT
OF JUDICIAL REVIEW
 CONCEPT OF JUDICIAL REVIEW

•In U.K.
•In USA.
In U.K.
• Review of Legislative actions
( invalidation of the laws of the
Parliament) is less common in U.K.
In U.K.
• Review of the executive actions
( policies of the political executive)
is also less common in U.K.
In U.K.
• Review of the
administrative action
is common in U.K.
CONCEPT OF JUDICIAL
REVIEW STARTED IN USA
In USA, Judicial Review of all
three actions is common
1. Legislative Action
2. Executive Action
3. Administrative Action
• Judicial Review of
Legislative Actions and
Executive Actions started
in USA after 1803.
In USA judicial review in
made under “ due process
clause” and “ equal
protection clause”.
Judicial Review in India
and Pakistan
• Indian constitution
allows it .
• Pakistan’s Constitution
also allows it.
Is there word “ Judicial
Review” written in
Constitution of Pakistan?
Judicial Review is a
Constitutional
Concept.
JUDICIAL REVIEW OF
LEGISLATIVE ACTIONS
( Review of laws of the Legislature)
Kinds of laws of
the Legislature
 Laws of the Legislature

1- Substantive laws.
2- Procedural laws.
BASIS OF JUDICIAL
REVIEW OF THE
LEGISLATIVE
ACTIONS
 BASIS OF JUDICIAL REVIEW OF THE LEGISLATIVE ACTIONS

•Law needs to be
in line of the
Constitution.
• A legislature can not
make a law against
the Basic structure of
the State.
• A legislature can not
make a law against
the Principles of
Natural Justice.
Who is custodian of the
constitution ?
Legislature, Executive or
Judiciary
• Superior Judiciary is
custodian of the
Constitution and can
invalidate such laws.
Judicial Review of
Legislative Action started
in USA
Marbury vs Madison
case( 1803)
Marbury vs Madison case( 1803).
Facts:
Presidential election 1800.
John Adam, Thomas Jefferson,
Aaron Burr were contestants.
Jefferson won the election.
Adam was Federalist and
Jefferson was Republican.
Marbury vs Madison case( 1803).
January, 1801 John
Marshall, Secretary of
state of Adam was
appointed as Chief
Justice. He was holding
two offices.
Marbury vs Madison case( 1803).
On 2 March 1801 Adam
nd

appointed Marbury as
Justice of Peace in District
Colombia along with such
other appointments .
Marbury vs Madison case( 1803).

John Marshal, handed over

commission( letter of
appointment) to his brother
James Marshall, who could
not deliver commission on
that day to Marbury.
Marbury vs Madison case( 1803).
On 3 March 1801,
rd

Jefferson [new
president] directed his
Secretary of State
James Madison to hold
the commission.
Marbury vs Madison case( 1803).
In December 1801,
Marbury moved the
Supreme Court under
John Marshal ,a writ of
Mandamus under
Judiciary Act,1789.
Could Jefferson hold
the commission ?
Could the Court issue a
notice to the President
of USA?
Marbury vs Madison

•Supreme Court
did not hear the
case till 1803
[ filed in 1801].
Decision
Marbury vs Madison
• Decision:

a) Judiciary Act 1789

was
unconstitutional.
• In a unanimous decision, written by Justice Marshall, the
Court stated that Marbury, indeed, had a right to his
commission. But, more importantly, the Judiciary Act of
1789 was unconstitutional.
• In Marshall's opinion, Congress could not give the Supreme
Court the power to issue an order granting Marbury his
commission. Only the Constitution could, and the
document said nothing about the Supreme Court having
the power to issue such an order. Thus, the Supreme Court
could not force Jefferson and Madison to appoint Marbury,
because it did not have the power to do so.
• Chief Justice Marshall's ruling interpreted the
Constitution to mean that the Supreme Court had
the power of judicial review. That is, the Court had
the right to review acts of Congress and, by
extension, actions of the President. If the Court
found that a law was unconstitutional, it could
overrule the law. Marshall argued that the
Constitution is the "supreme law of the land" and
that the Supreme Court has the final say over the
meaning of the Constitution.
Marbury vs Madison
Decision:

b) Marbury was
having right to the
commission.
Marbury vs Madison

c) USA is a Govt. of
law , even President
is accountable to the
Court but…?
Marbury vs Madison

d) Accountability of the
President is not in the cases of
his executive discretion.
Delivery of commission to
Marbury comes under the
executive discretion [political
question].
Political question does
not come under the
ambit of Judicial
Review
JUDICIAL REVIEW IN PAKISTAN
 JUDICIAL REVIEW IN PAKISTAN

JUDICIAL REVIEW ON COMPLAINT

SUO MOTTO JUDICIAL REVIEW
 JUDICIAL REVIEW ON COMPLAINT

Judicial review on complaint by Supreme

Court under Art. 184(3).
Judicial review on complaint by High Courts
under Art. 199.
Only High Courts or the
Supreme Court can exercise
the power of Judicial Review
against Legislature and
Executive
JUDICIAL REVIEW OF
ADMINISTRATIVE ACTIONS
 JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

Basis of judicial Reivew

• Actions without lawful authority.
• Actions in unlawful manner.
Explain Art 199 and Art
184(3) under the concept
of Judicial Review
• Judicial Review and
Political Question
“ DOCTRINE OF POLITICAL QUESTION”
What is a
Constitutional
Question?
Constitutional Question.
• where a speaking
answer is available in
the Constitution.
Kinds of Constitutional Questions
 Constitutional Questions

Two Kinds
•Political question
•Legal question
Constitutional Legal Question
Constitutional Legal
Question is to be
answered by the Superior
Courts.
Banning a political party

At which forum this

dispute shall be resolved?
 Banning a political party

Art-17:
The Supreme Court’s
decision shall be
final.
Dispute between
two Governments
 Dispute between two Governments

Art-184(1)

Before the Supreme Court

Political Question
POLITICAL QUESTION

• It is a constitutional
question.
POLITICAL QUESTION

• It is a question to be
answered by a
political forum and
not by the judiciary.
• Appointment and
removal of the
President and P.M.
CASES WHERE SPEAKING ANSWER IS
AVAILABLE IN THE CONSTITUTION

•Appointment and
removal of the
Ministers.
•Appointment and
removal of
Governors.
Issue of NFC
Award
Issues related to
Part-II of the
Legislative List
SOME CASES OF POLITICAL QUESTIONS
Political Question
Doctrine evolved
from USA
Mrlbury V Madison(1803)
Mrlbury V Madison(1803)
• Chief Justice, John Marshall first used the term
political question in 1803.
• Marbury was appointed as Justice of Pease on the
last day of the going President.
• His letter of appointment was to be delivered
subsequently. New President refused to deliver this
letter to Marbury.
• Was refusal of the president a
political question or legal
question?
President Nixon–
Watergate Scandal[1974]
President Nixon– Watergate Scandal[1974]
• Tapping of information of the Democrats from
their office located in Watergate building.
• Question of impeachment of the President
arose.
• An investigation commission was appointed
before impeachment proceedings.
• President Nixon refused to handover tapes to
the commission being president and not
answerable to the commission. He argued it as
executive privilege.
• Was it a political question?
Bush and Gore Case[ 2000].
Bush and Gore Case[ 2000].
• Election 2000, problem of vote counting in
Florida.
• The State Court ordered for re-counting of
votes.
• Bush filed application to Supreme Court
against the direction of the Court of Florida.
• Court stopped re-counting and loosing Bush
won.
• Was it a political question?
Dissolution of Assembly cases in Pakistan.

1. Mulvi Tameez-ud-din case-- 1954.

Governor General Gulam Muhammad dissolved Constituent
Assembly-
2. Skinder Mirza dissolved National Assembly –
1958[ Dosso case].
3. Yahya Khan dissolved National Assembly —
1969 [Aasima Jilani case 1972] .
4. General Zia-ul- Haq dissolved Bhutto’s
Assembly.—1977[Nusrat Bhutto case 1977]
5. General zia-ul- Haq dissolved Junejo ’s
Assembly —1985[Haji Saif Ullah case 1989]
Dissolution of Assembly cases in Pakistan.

5- Gulam Ishaq dissolved BB ’s Assembly, 1990.[ Ahamad Tariq

Rahim case 1990 ]
6- Gulam Ishaq dissolved Nawaz Sharif ’s Assembly
1993[ Nawaz Sharif Case 1993].
7- Sabar Shah case 1994[ Dissolution of Provincial
Assembly].
8- Farooq Lagari dissolved BB ’s Assembly - 1996[ Benazir
Bhutto case 1995].
9- Pervaiz Musharif dissolved Nawaz Sharif’s Assembly –
1999[ Zafar Ali Shah case 2000].
10- Chief Justice Case/Restoration Case( 20 July 2007)
11- Sindh High Court Bar Association Case (2009)- Restoration
of Chief Justice Case Emergency: Nov. 2007[PCO Judges Case ].
JUDICIAL ACTIVISM
JUDICIAL ACTIVISM
• Judicial activism is a
philosophy advocating that
in order to extend rights to
the citizens, judges should
interpret the Constitution
in consistent with
contemporary conditions
and values.
• Judicial activism is
associated with (modern)
liberalism that believes in
broad interpretation of the
Constitution which can
then be applied to specific
issues.
JUDICIAL ACTVISTS
• They take constitution as a living
document.
• They believe that judges to have
equal responsibility as to the
public welfare.
• They give liberal interpretation as
to the rights of the people.
JUDICIAL RESTRAINT
JUDICIAL RESTRAINT
oJudges should respect the laws
of the Legislature.
o If they find some
constitutional deviation, such
law should be referred back to
legislature.
o Judges should absorb criticism
JUDICIAL RESTRAINT

• Judicial restraint means

that judges should respect
the democratic process and
stay out of policy debates if
democracy is to thrive.
JUDICIAL RESTRAINT
• Judicial restraint means that
constitution should not be
liberally interpreted to the
derogation of the law of the
parliament.
• If conflict comes parliament to
be held supreme.
SOME DOCTRINES OF
JUDICAL REVIEW AS TO
JUDICIAL ACTIVISM VS
JUDICIAL RESTRAINT
IMPLIED POWER DOCTRINE
IMPLIED POWER DOCTRINE
• Judicial review powers( legislative side or cabinet
policy) of the Superior Court is implied from the
Constitution.
• Constitution does not clearly provides that who
will interpret Constitution.
• It is implied principle that Superior Courts will
interpret the Constitution.
• To which extent, the Courts will interpret has
nowhere been mentioned in the Constitution.
• The believers of this doctrine say that Court should
go to any extent to interpret Constitution to extent
and to protect citizen rights.
DOCTRINE OF ORIGINAL INTENT
DOCTRINE OF ORIGINAL INTENT
• When Courts interpret any law, original intent
of the Construction should be seen.
• Plain common sense meanings of the text of
the law to be read vis a vis Constitution.
• It can not be argued that actual meanings of
the law are some what different to plain
meanings of the text.
• A Law is a no law which is beyond the
plain meanings of the Constitution.
• Where conflict in any two Articles of
the Constitution, then to see
preamble of the Constitution and
intent of the framers of the
Constitution.
• Take the Constitution as whole.
• DOCTRINE OF STRICT NECESSITY
DOCTRINE OF STRICT NECESSITY
• Interpretation only when absolutely
required.
• Avoid interpretation, if question
could be resolved otherwise.
• Remand the case to the relevant
forum. ( Supreme Court remanded
Musharaf’s 27 Ordinances to the
Parliament)
• DOCTRINE OF PRESUMPTION OF
CONSTITUTIONALITY
DOCTRINE OF PRESUMPTION OF
CONSTITUTIONALITY
• Courts will presume that every law has been
made in accordance with the Constitution.
• To get declared any law unconstitutional,
some demonstration of its unconstitutionality
shall be required.
• Some one is required to be effected by the
unconstitutional law.