Concerned about the definition of boundaries between executive and judicial branches of

government, James Madison laid down the basis for the exercise of judicial review. In the
days when American Constitution was being drafted for the first time, Madison wanted to
design a system which could keep a check on powers of different departments of government.
Madison observed:
In framing a government which is to be administered by men over men, the greatest
difficulty lies in this: you must first enable the government to control the governed and in the
next place oblige it to control itself.
In the landmark case of Marbury vs. Madison, Madisons efforts resulted in the formation of
a government, which had limits to its powers, granting power of Judicial Review to the
courts.
Judicial review is a 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 (Zaidi). Thus, courts function,
in exercising that power, is to make sure that the public authorities do not act unjustly by
overstepping their defined sphere of power as laid down under the constitution.
Article 175 of The Constitution of Pakistan, 1973, lays down the existence of the Supreme
Court of Pakistan, the High Courts and the lower courts. The courts in Pakistan have
obligations exclusively towards the law and the Constitution.
The Pakistani legal system consists of two types of judicial review:
1

Review of Judicial Actions: Where all the courts in Pakistan have the power to review
its orders, judgment and decree.

Review of Administrative and Legislative Actions: Where the constitution and the law
grant courts the power to review the administrative actions.

The scope of judicial review depends on whether it is a review of judicial actions or the
review of administrative and legislative actions. The power of supreme courts comes from
two sources: common law and the statues. The judicial review power of the courts is
classified either into:
Supervisory review: which has originated from the common law and is subject to
modifications made by the Parliament by the way of Statue or
Appellate review: which is a power originated from the statue.
Supervisory review jurisdiction is with the High Courts; while appellate review jurisdiction
is with the Parliament.
The legislative power of the parliament is restricted; it cannot draft any law which is in
contradiction or inconsistent with the basic constitution. Except for in emergency situation, it
cannot legislate on provincial matters. Most importantly, the laws cannot be incompatible

with the Islamic jurisdictions, fundamental rights and the constitution itself. Therefore, it is
from these restrictions that the power of the judicial review comes into play. The judiciary
can thus reject and invalidate the act of parliament which goes beyond the scope of its
legislative powers. This does not mean that the Supreme Court or High Court can
cancel/reject the law which the parliament or provincial assembly passes, but the judiciary is
responsible to interpret the constitution and if a particular law conflicts with the provisions,
then that law shall become void. The legislation then has to repeal or amend it.
Pakistan has a federal constitution, which distributes powers between the center 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 (Zaidi).
Every constitution lays down a method for amendment. No constitution is static. According
to the Articles 238 and 239 of the case of 1973, the Parliament has the exclusive power to
mend the constitution with two-third majority and presidents ascend. According to
Amendment of Constitution, Article 239:
Constitution Amendment Bill:
No amendment of the Constitution shall be called in question in any court on any
ground whatsoever.
For the removal of doubt, it is hereby declared that there is no limitation whatever on
the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the
Constitution (Pakistan Constitution).
Parliament has the power to amend, which is to make minor changes within its basic
structure. It cannot re-write the constitution.
Though the courts have judicial review power, they cannot assume to have the law making
function. Sovereignty is neither located in the judiciary nor in the parliament but the
constitution itself.
Asma Jilani filed a case against Government of Punjab. This case shows the supremacy of the
constitution. The extracts of the case are given below:
Asma Jilani vs. Government of Punjab
PLD 1972 SC 139
This famous case involves two petitions that were filed under Article 98 of the constitution of
Pakistan 1962 against the detention of Malik Altaf Gauhar and Malik Ghulam Jilani which
were made under the Martial Law imposed in 1971 by Yahya Khan. The first petition which
was filed by Miss Asma Jilani in the Punjab High Court was for the release of her father

Malik Ghulam Jilani whereas the second petition was that filed by Mrs. Zarina Gohar for the
release of her husband Altaf Gohar in the Sindh High Court. These two arrests were
challenged in Lahore and Karachi High Court respectively.
The High Court overruled the petition on the basis of clause # 2 of the Jurisdiction of 1969s
Courts Order No.3 based on which courts could not question the validity of any act done
under the 1978s Martial Law Regulation No.78.
Asma Jilani then appealed before Supreme Court of Pakistan as a result of which the
detention of Malik Ghulam Jilani was dismissed and it was held that principles that were laid
under State vs. Dosso were not correct. The Supreme Court further declared Yahya Khan a
usurper and all his actions illegal by stating that Pakistan was not a foreign country to be
invaded by any army nor was it any alien territory to have been occupied by the said army so
martial law should not have arisen in these circumstances at first place. It further declared
that Pakistan has got its own legal doctrine The Quran and Objectives Resolution which
makes constitution far more superior to any Martial law.
Although an appeal was made for doctrine of necessity to defend military regime of General
Yahya Khan but it was rejected through judgment of this appeal.
To sum up, it can be said that although judgment of case of Miss Asma Jilani was proclaimed
after tenure of General Yahya Khan, however because of it Bhutto was later compelled to
remove the Martial law. Also this judgment paved the way for restoration of democracy and
for adoption of constitution of 1973.

Moreover, the courts at all levels are required, through proper proceedings, to scrutinize the
exercise of public power, which is called the executive judicial review. Courts have full
protection under the Judicial Officers (Protections) Act, 1950, for their actions in their
judicial capacity. The Supreme Court with the power of judicial review can scrutinize all
matters of complaint regarding the use or irregular use of public power by any executive
authority of state at the appellate stage.

As the Supreme Court of Pakistan took a bold step in 2010 challenging presidential immunity
granted under the Pakistan Constitution and laws. The state grants immunity so that the
president can discharge state duties without threats of civil litigation and criminal
prosecution. One such case was against President Zardari and his wife Benazir Bhutto.
The case involves Swiss companies who paid commissions to Zardari to get projects while
Bhutto was the Prime Minister. In 1997, Pakistan requested the Swiss authorities to help in
civil suit against Zardari. The Swiss court ruled against Zardari and ordered them to return
the laundered money to Pakistan. The couple appealed against the verdict. While the appeal
was pending, General Musharraf, entered into an agreement with Bhutto under National

Reconciliation Ordinance (NRO), the Swiss case against the Bhutto-Zardari couple was
withdrawn. After the general elections, Zardari replaced Musharraf as the President of
Pakistan.

In 2009, the Pakistan Supreme Court, with decision of 17 Justices, declared the NRO
unconstitutional. Consequently, the Swiss case halted under the NRO was revived. The Court
ordered the Prime Minister, to send a letter to the Swiss authorities to reopen the case for
final resolution. The Prime Minister, refused to write the letter arguing that the President
enjoys immunity under the Constitution. The Supreme Court convicted the Prime Minster for
refusing to obey the Court order and detained him for less than a minute which made him
unqualified to be a member of the parliament.

This led to serious debate whether the president is entitled to immunity in the Swiss case. The
government claimed that the Executive and the Parliament, the institutions of elected
representatives of the people, decide the question of presidential immunity. The Supreme
Court ordered the government to write the letter without deciding on the entitlement to
immunity.
Only court had the power of judicial review to strike down executive orders and statutes that
the parliament passes. Under constitution parliament and government comes under law. Since
the Pakistan Supreme Court is the final authority in interpreting the Constitution, its decisions
are binding on the government. If the president or his ruling political party were to exercise
the final authority to determine presidential immunity, the executive abuse of power would be
unchecked. However in April 2010, Swiss attorney general Daniel Zappelli had stated that
Zardari as President enjoyed immunity under international law, Swiss courts could not
entertain any request to reopen the cases against him. Nawaz Sharif after joining the office
contacted swiss authorities to reopen the case but they refused saying time have passed now.
(Khan, 2012)

Alongside this is the power given to the High Courts to articulate upon the constitutionality
and validity of all laws and to make sure that the executive authorities will act in accordance
to the courts by giving effect to its orders.
The executive is that part of the government that holds the authority and responsibility for the
daily administration of the state by enforcing the law. By the constitution, Pakistan has a
parliamentary democratic system of government with the executive authority resting with the
Prime Minister and the cabinet appointed by president. Under the article 199 any state
executive, be he the President, the Prime Minister or a minister, or a civil servant is amenable
to the High Courts jurisdiction. There have been a couple of cases which exemplify this

point. For instance, Nawaz Sharif and Benazir Bhutto cases regarding the dissolution of
assemblies provide ample testimony to this point.
The law reconciles the interests of government and governed by resolving controversies and
redressing grievances through the medium of court. The issues committed to the jurisdiction
of the Courts are likely to be excluded, the one with paramount importance for the conduct of
the government.
However, it must be crystal clear that the purpose of administrative judicial review is to keep
a check on excessive power with the executives, as quoted in Abdul Ala Maudoodis case. Its
role is limited to check administrative adjudications, not to supervise or supplant them, as
Judicial Review cannot supervise all administrative adjudications.
It has been ascertained by way of judgment reported as, PLD 2011 Lahore 120 that a law
disseminated by delegated legislature, according to the legal principle, must put up with the
additional test of not being unreasonable, arbitrary , ultra vires the parent statute or in conflict
with any other law otherwise it is considered unlawful.
Doctrine of ultra vires is in fact is a check of passed on legislation, its validity and the proper
observance of procedure established legislation. Ultra vires is a Latin phrase literally meaning
"beyond the powers". "If an act requires legal authority and it is done with such authority, it is
characterized in law as intra vires (literally "within the powers"; Acts that are intra vires may
equivalently be termed "valid" and those that are ultra vires "invalid (Judicial Review in
Pakistan). The doctrine is of two kinds:
Substantive ultra vires is the state of affairs where the executive authorities execute laws or
rules, for which they are not authorized by the parliament.
Procedural ultra vires is the state of affairs where executive authorities fail to follow the
procedural requirement approved by the statutes under law.
The administrative judicial review can be explained by the case of Maulvi Tameez-ud-Din
Khan who was the president of the constituent assembly. On October 24, 1954, the time when
Maulvi tameez-ud-din was the Prime minister of Pakistan, a new Council of Ministers was
appointed by the then Governor General of Pakistan Mr. Ghulam who dissolved the
Constituent Assembly. It was argued that the actual reason for this dissolution was that the
Assembly was going to adopt a constitution which Mr. Ghulam Mohammad objected. Against
the decision of Governor General, Maulvi tameez-ud-din filed two writ petitions before the
Chief Court of Sindh at Karachi one known as writ of Mandamus to confine this new Council
from implementation of the dissolution and the other known as writ of quo Warranto to ask
them as under which authority they were holding the offices?
Members of the new Council of Ministers, in response, also appealed to the court claiming
that it had no jurisdiction under which it was bound to approve the request of the Prime
Minister and thus denied to overturn the dissolution and appointments. They further argued
that Section 223-A of the constitution was invalid on grounds that it had never been validly
enacted into the Constitution as it was never approved of by the Governor-General. However,

the Chief Court of Sindh ruled in favor of Prime Minister Tamizuddin declaring the step
taken by the Ghulam Muhammad governor general as null and void and restoring the
assembly. The Federation of Pakistan along with the Council of new Ministers was
unsatisfied and so appealed before the Federal court which was heard in March of 1955
(Federation of Pakistan v Maulvi Tamizuddin Khan).
The appeal hearing, in March 1955, was held under Chief Justice Muhammad Munir who
declared the dissolution to be valid and ruled that the Chief Court of Sindh had no authority
to overturn the Governor General's dissolution on account that the Constituent Assembly was
operating as the 'Legislature of the Domain' and also that the assent of Governor-General was
essential for any legislation to become law. The federal court decided the case in the favor of
the federation and the council of ministers on grounds that the governor generals assent was
necessary, section 223-A of Government of India Act is not a law, there is no jurisdiction of
chief court and that constituent has no sovereignty. Thus the writ petition by Tamizuddin was
dismissed and the dissolution of constituent assembly was declared right.
Similarly in a detention case, the court needs to check the lawfulness of authority of detention
and the manner of detention. Begum Shorish Kashmiri case the outstanding example of this.
As judicial review power is exercised by the courts worldwide to make all the nonconstitutional acts and polices of the executive, administrative and legislative authorizes
ineffective, Judicial activism is a view of judicial decision-making, in which judges allow
their personal views on public policy among other areas in order to guide their decisions.
In definition, judicial activism is judicial rulings suspected of being based on personal or
political considerations rather than on existing law.
The concept of judicial review was inherited to India and Pakistan under the common law
jurisdiction. After gaining the independence from the British Colonial rule in 1947, both the
countries adopted different pre-independence laws and regulations along with concepts of
legal system.
Judicial activism is the last refuge against an inconsistence and irresponsible government. An
escort judiciary upholds the constitution, restraining the legislative and executive to their
constitutional spheres. It acts as a check and balance against the power abusers of the society
that includes the crime and drug mafias, corrupt parliamentarians and the effective law
molders.
However, if judicial activism is hijacked by the individuals for personal tribute and not for
the common man, then it can bring to a deadlock the whole government machinery. This was
witnessed recently when the whims and caprices of one man, the judiciary, instead of
asserting itself for upholding the constitution, became the main stage of confrontation.
Contempt cases and political dueling became the order of the day. Fortunately, the crises were
resolved amicably.

Judicial activism was well admired when it was exercised in public interest. However, when
activism was turn into a personal rivalry even after the five judges had been appointed to the
Supreme Court, public opinion tilted against the Chief Justice.
It is heartening that judicial activism has come to stay in Pakistan. However, we still need to
remove constitutional lacunae that impinge on the freedom of the judiciary. Conscientious
judges can be dumped in the Federal Shariat Court. Benches of troublesome High Court
judges can be changed by executive fiat. All these provision need to be removed from the
constitution. Also, we need to expand the judiciary to dispose off the backlog of pending
cases. One must be grateful of the fact that strong democratic traditions are taking roots in
our political system. A strong judiciary increases the faith of the common man in the system.
It also leads to political stability and constitutional harmony
In another case, Pakistani jurisprudence, the Supreme Court, has accepted the basic
constitution theory to invalidate a constitutional amendment in Mehmood Khan Achakzai v
Federation of Pakistan (PLD 1997 SC 426), and later in Syed Zafar Ali Shah v General
Pervez Musharraf (PLD 2000 SC 869). The features of the Pakistani constitution, protected
under the basic structure doctrine, include federalism, parliamentary democracy and Islamic
provisions including the independence of judiciary. The substantive question in the petitions
challenging the establishment of the Judicial Commission under the Eighteenth Amendment
is, whether the new method of appointment of judges will be an attack on the independence
of judiciary? Will the new method lead to the politicising of the institution of judiciary?
Therefore, the Supreme Court will rightly consider the character of our parliamentarians and
the way the previous assemblies passed several amendments in an attempt to make the
judiciary subservient. Zulfikar Ali Bhutto, the maker of the constitution of 1973, himself
introduced the Fifth and Sixth Amendments during his reign, jeopardising the independence
of the judiciary. Notwithstanding anything, in the light of the above-mentioned cases it is
crystal clear that Parliament has limited authority to amend the constitution. And if
Parliament transgresses its constitutional limitations, the Supreme Court can invalidate such
action, including the constitutional amendment, by invoking the 'basic structure doctrine. The
defenders of Parliaments authority proffer the argument that even if there are limitations on
its (Parliament) power to alter the basic structure of the constitution, the judiciary cannot
enforce these limitations in view of the ouster clause. Rather the remedy lies in the political
process. This objection can be rebuffed by examining how the court approaches the
jurisdiction ousting clauses. It is settled law that the exclusion of the ordinary jurisdiction of
the courts is not to be readily inferred; however, such exclusion must be either explicitly
expressed or clearly implied. The courts start with a strong presumption against the ouster of
their jurisdiction and construe such provision strictly. At various places in the Constitution of
Pakistan (inter alia Article 236, 270, 239), the jurisdiction of the court has been excluded. But
the court has taken a consistent view those acts, orders or proceedings which are done, taken
or made without jurisdiction, mala fide or coram non-judice cannot be saved from the
security of courts by the ouster clauses.
This was reaffirmed by 13-member bench in Syed Zafar Ali Shah case. Chief justice gave a
verdict that it is important for judiciary to be independent and no restrictions should be placed

on its performance and operation. It cannot be denied that independence of judges hinges, to
a large extent on the 'transparency of the mode of their appointment.
Certainly, if the method of appointment proposed under the Eighteenth Amendment
continues, the whole process will be politicised in case the confirmation of judges depends on
the whims and caprices of members of the Parliamentary Committee. (Nauman, 2010)
Lord Woolf, a great authority on Judicial Review, wrote: The tension created by judicial
review is acceptable because it demonstrates that the courts are performing their role of
ensuring that the actions of the government of the day are being taken in accordance with the
law. The tension is a necessary consequence of maintaining the balance of power between the
legislature, the executive and the judiciary.

Works Cited
Pakistan
Constitution.
(n.d.).
Retrieved
http://www.pakistani.org/pakistan/constitution/part11.html

from

Zaidi, H. (n.d.). Retrieved from Dawn: http://www.dawn.com/news/881082/thepower-of-judicial-review-scope-and-limits

Works Cited
Khan, L. A. (2012, 07 13). the world post. Retrieved 03 22, 2015, from
huffingtonpost.com: http://www.huffingtonpost.com/liaquat-alikhan/pakistan-presidential-immunity_b_1671249.html
Nauman. (2010, 04 27). In favour of judicial review. Retrieved 03 2015, 22, from
nation.com.pk: http://nation.com.pk/columns/27-Apr-2010/In-favour-ofjudicial-review