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.
 Constitution of Pakistan
• The power of judicial review is exercised differently in
different political systems.
• Pakistan has a federal constitution, which distributes
powers between the Centre and the provinces.
• 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.
 Restrictions on Parliament
• The constitution also places some restrictions
on the powers of both federal and provincial
legislatures.
• “no law can be made which is in conflict with
any of the fundamental rights granted by the
constitution to the citizens”.

• “no law can be made which is repugnant to the

injunctions of Islam”.
 Restrictions on Parliament
• “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 can legislate on provincial subjects only when
a proclamation of emergency is in force.
 Restrictions on the legislative function
• On the basis of these restrictions on the legislative
competence of parliament 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.
• According to some philosophers parliament in
Pakistan is not sovereign.
• Rather its powers are restricted by some written
provisions of the constitution.
 Scheme of Constitution
• 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.
 Scope and limits of this power
• 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.
• 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.
 Article 239
• 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.
 Supremacy of Constitution
• 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.
• Thus any amendment to the constitution has to be within its basic
framework.
• 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.
 Limits on the power of Judiciary
• 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.