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 neighbouring 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 authorised 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. 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.

E-mailhussainhzaidi@gmail.com