Explain the Role of  the doctrine of Judicial review in Pakistan protecting and enforcing fundamental rights in the Pakistan legal system

CONCEPT OF JUDICIAL REVIEW

MEANING OF JUDICIAL REVIEW:

• According to Black's Law Dictionary: "A court's power to review the actions of other branches or levels of governments".

DEFINITION OF JUDICIAL REVIEW:

• The power of the judiciary whether a law passed by the Parliament or any law enacted by a state legislature or any provision in the state constitution aligns with the Constitution.

POWER OF JUDICIAL REVIEW:

• Judicial Review is one of the checks and balances on the Separation of power: the power of the judiciary to supervise the executive and legislative branches of the state.

ORIGIN OF JUDICIAL REVIEW:

• The Supreme Court faced the issue of judicial review for the first time in the case of
• "Marbury V Madison" which was decided in 1803.

JUDICIAL REVIEW IN CONSTITUTION OF PAKISTAN:

• Though no express provision as to "Judicial Review has been given in the constitution of Pakistan, however Supreme Court of Pakistan may under article 184(3) and any High Court under article 199 exercise the power of judicial review.

LEGISLATIVE ACT SUBJECT JUDICIAL REVIEW:

Legislative acts subject to the judicial review are.....

Firstly:

• Any law made in conflict with any of the fundamental rights granted by the constitution.

Secondly

• Any law made repugnant to the injunction of Islam.

Thirdly:

• Any law is inconsistent with the basic character of the constitution.

Fourthly:

• Any law creates conflict between the two governments.

EXECUTIVE ACT SUBJECT JUDICIAL REVIEW:

Followings are the grounds to exercise the power of judicial review against an administrative action if they are resulting injustice:

Irrationality:

• Irrationality means unreasonable delay.

Illegality:

• Illegality means the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it.

JUDICIAL REVIEW IN PROTECTING AND ENFORCING FUNDAMENTAL

RIGHTS:

The Supreme Court of Pakistan or High Court may exercise the power of judicial review by issuing a,

1.  A writ of mandamus.
2. A writ of habeas Corpus.
3. A writ of Certiorari.
4. A writ of Prohibition.
5. A writ of Quo Warranto

WRIT OF MANDAMUS:

• A writ of mandamus is a command issued to a public authority to do a certain act that he is bound to do.

WRIT OF PROHIBITION:

• A writ of mandamus is a command issued to a public authority to refrain from doing anything which he is not permitted by law to do.

WRIT OF CERTIORARI:

• Writ of certiorari means to declare that an act of public authority is without lawful authority and of no legal effect.

WRIT OF HABEAS CORPUS:

• Writ of habeas corpus means to direct that a person may be before it so that the court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

WRIT OF QUO WARRANTO:

• A writ issue requires a person holding a public office to show under what authority of law he claims to hold that office.

DIFFERENCE BETWEEN ARTICLE 184(3) AND 199:

The main difference between Article 184(3)and Article 199 is that a Supreme Court may exercise powers as mentioned under article 199 only when there is a matter of public importance.

FAMOUS CASES ON JUDICIAL REVIEW:

• Zafar Ali Shah Case (2000 SCMR 1137)

Held: The court can use the power of judicial review to protect the fundamental rights of the people.

• N.R.O Case (PLD 2010 SC.265)

Held: Legislature is assigned to the task of law-making, the executive to execute such laws, and the judiciary to interpret the laws -none of the organs of the state can encroach upon the field of the others.

COMPARISON WITH OTHER COUNTRIES:

In the British system the court can only interpret the law however in Pakistan the court not only interprets the law but also sets aside the same. Unlike India and America, the constitution of Pakistan does not confer the power of judicial review in express terms.

JUDICIAL REVIEW VS JUDICIAL ACTIVISM:

Judicial review means where the legislature or executive exceeds the powers given to it by the constitution, the judiciary can prevent it by declaring their act ultra vires. Whereas judicial activism means readiness and quickness of the judiciary to perform the set of judicial reviews.

CRUX:

Judicial review is the power of the court of a country to examine the functions of the legislative, executive, and administrative arms of the government and to determine whether such actions are inconsistent with the government. The Pakistan constitution also provides the power to the judiciary in the doctrine of judicial review to safeguard fundamental rights.