Introduction to Legal Reasoning

DR FAIZA ISMAIL
 Constitutional Law
1. What are fundamental principles of the Constitutional
law?
2. What is Separation of Power?
3. What is Judicial Review?
4. What is Judicial activism?
 Marbury v. Madison [1803]
Facts

In the 1800 presidential election, Thomas Jefferson defeated John Adams. Before
Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act
of 1801, which created new courts, added judges, and gave the president more control
over appointment of judges.
The Act was essentially an attempt by Adams and his party to frustrate his successor, as
he used the Act to appoint 16 new circuit judges and 42 new justices of the peace. The
appointees were approved by the Senate, but they would not be valid until their
commissions were delivered by the Secretary of State.
William Marbury had been appointed Justice of the Peace in the District of Columbia,
but his commission was not delivered. Marbury petitioned the Supreme Court to
compel the new Secretary of State, James Madison, to deliver the documents. Marbury,
joined by three other similarly situated appointees, petitioned for a writ of mandamus
compelling the delivery of the commissions.
 Issues
1. Do the plaintiffs have a right to receive their
commissions?
2. Can they sue for their commissions in court?
3. Does the Supreme Court have the authority to order the
delivery of their commissions?
 Rule

1. The US Constitutional article III, section 2.

2. The Judiciary Act 1789, sec 13.
 Art III, Sec 2

In all cases affecting ambassadors, other public ministers and

consuls, and those in which a state shall be party, the Supreme
Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and
under such regulations as the Congress shall make.
 Analysis
Article III serves as a limitation on the types of cases the Supreme Court has original
jurisdiction over. Cases which are not within the Supreme Court’s original jurisdiction fall
under the Court’s appellate jurisdiction.
The Judiciary Act of 1789 permitted the Supreme Court to exercise original jurisdiction
over causes of actions for writs of mandamus.
Section 13 of the Judiciary Act of 1789 authorized the United States Supreme Court
jurisdiction to provide the remedy of a writ of mandamus was held to be unconstitutional.
Section 13 directly conflicts with the Constitution, article III, section 2.
In short, Section 13 of the Act was unconstitutional since it attempted to expand the original
jurisdiction of the Supreme Court.
 Implication- Judicial review
Chief Justice John Marshall reasoned that the Judiciary Act of 1789 conflicted with
the Constitution. Congress did not have power to modify the Constitution through
regular legislation because Supremacy Clause places the Constitution before the laws.
In so holding, Marshall established the principle of judicial review, i.e., the power to
declare a law unconstitutional.
The holding of Marbury v. Madison[1803] established the United States Supreme
Court’s power to determine whether a law passed by Congress was constitutional
(judicial review).
Prior to this case, it was clear that laws conflicting with the Constitution were invalid,
but the branch of government who determined validity had not been established.
 Judicial Review in Pakistan
1. Does the Pakistan’s Parliament have absolute legislative powers?

2. Does the Constitution of Pakistan explicitly provide for judicial

review of legislation and constitutional amendments?
 Pakistan- Parliament and Judiciary
There are four main restrictions on the legislative powers of parliament
The Parliament did not have powers to
1. legislate on provincial subjects (except when a proclamation of emergency is in
force);
2. Enact laws which are incompatible with fundamental rights;
3. Enact laws which are inconsistent with Islamic injunctions and
4. Enact laws which violate the basic structure of the constitution (Objective
resolution)
In other words, the superior judiciary can invalidate an act of parliament that violate
any of the above restrictions.
 Judicial Activism??

Judicial activism should be promoted

◦ Roe v Wade-right to abortion recognized.
◦ Brown v Board of Education-equal right to education without discrimination.
◦ Shehla Zia v WAPDA-right to environmental protection.

Judicial activism should be discouraged

◦ Art 184 (3)- Suo motto power of Supreme Court
◦ Panama Judgment- Elected PM terminated
◦ Zaheerudin v State- Restricted freedom of religion for Qadianis