ISLAMIC CONCEPT OF JUDICIAL REVIEW IN CONSTITUTIONAL CONTEXT
OF
(Scope and Application)
By:
BARKAT ALI KHAN,
LLM. (PU),
Assistant Professor, Department of Law,
The
Abstract
Islamic character is the basic feature of the Constitution 1973
of Islamic Republic of Pakistan. Legislature, executive, and judiciary being
the main constitutional organs of the state, are under constitutional
obligation to protect this characteristic. However, this purpose can be served
more productively by the judiciary under the doctrine of 'Judicial Review', a
substantially recognized and well established mechanism for the upholding of
the constitutional supremacy. Shariah,
the constitution of an Islamic state, is also intended to be preserved on the
analogous pattern. The constitutional system of
Background
Islam is a complete code of life covering all facets of mankind's activities. It provides fundamental principles for the lego-political and socio-economic system for a political society. Islam comprehends all this by way of a Divine Law, called Shariah, embodying the injunctions of the Quran and Sunnah. Sharia is the fundamental law of the Islamic state, providing a political and constitutional order for Muslim community. From the Shariah view point, the concise context of the Quran that "....those charged with authority among you...."[1], delivers up three major organs and subjects of the Islamic polity, namely: Legislature (Majlis-e-Shura), Executive, (Emirate), Judiciary,(Qaziah) and people (Annas) and the same was the state structure in the state of Madina.
The Shariah provides, "....who (conduct) their affairs by mutual consultation……"[2], "………and, "……….consult them in affairs…….."[3] and, "each one of you is responsible for his act".[4] The combined reading of these characteristics regarding statecrafts of Islamic polity, confirms that every action of each organ of the state must be scrutinized with a view to put the public functionaries within the prescribed limits of Shariah. So, in Islamic state, such institutions have the features of independent functioning with no radical separation of powers. Legislative, executive and judicial functions are performed by the concerned organ on the principles of power-sharing and consultation. Therefore, the principal of interdependence is pursued in term of checks and balances of the Governmental authority in the Islamic state.
Federal Republic of Pakistan through out its constitutional
history has been determined to be an Islamic Republic,[5]
wherein the state affairs are to be comprehended as deliberated by Islamic
ideology. Main Nazir Akhtar J. in a case[6]
observed that "
The perusal of this, constitutional
obligation, therefore, has been intended for to be served by the Superior
Courts, particularly
This research paper is built upon
the hypothesis that the adoption of the principle of judicial review of Islamic
style may further confirm the eventual development of a system possessing the
features of Islamic polity, aimed at the time of independence of
Judicial Review:
Legitimacy & Authority
A political system requires certain agreed principles and rules called as constitution. The provisions provided for in such instrument are designated as constitutional law which establishes a political entity. The Constitutional law in substance and contents view point deals with the fundamental structure and general principals of Government and relations of the Governmental authorities to each other and to the individuals as well. It defines the limits of the Government, within which powers are to be exercised politically. It regulates the division of sovereign powers and directs to what persons each of these powers to be entrusted, and the manner of its existence.[9] It is, therefore, the fundamental and supreme law of the land having a special sanctity, irrespective of its being in documentary form or in term of basic norms of the society. Since the scope and nature of the constitution depends upon the nature of the concerned political society.
The essence of a successful Government flows from the constitution as, "The good or bad fortune of a nation", Georges Bidault says, "depends on three factors: its constitution; the way the constitution is made to work; and the respect it inspires."[10] Deviation from constitution fades the very fabric of the political system, and the ultimate result is the defeat of the 'rule of law'. The matter of the guardianship of the constitution for the purpose to maintain its supremacy, and to preserve "the respect it inspires"[11], is the touchtone of its efficacy as the fundamental law of the land.
Fridrich, a celebrated scholar emphasizes, "While in a sense all authorities are called upon to protect the constitution as expressed in their oath of offices, there needs to be an individual or a body which has the last word."[12] So, judiciary with the system of laws and institutions is responsible to maintain the rule of law and constitutional supremacy in many constitutional systems.[13] It provides the foundation for social justice and equality, obligatory for the good democratic governance. Thus, for the assurance of rule of law, and upholding of the constitutional supremacy the judicial branch of the Government exercises the power of judicial review[14] of administrative and legislative actions. In this context judicial review may, therefore, be defined as the competence of the superior Courts to declare the constitutionality or otherwise, of the executive actions or legislative enactments. In simple words superior judiciary examines and decides the question whether or not any law, order is in accordance to the constitution.
Through judicial review Superior Courts play important role as to upholding the supremacy of the constitution, for which, in deed, "Superior Courts are bound by their oath and duty to act so as to keep the provisions of the constitution fully alive and operative and to preserve them in all respects."[15] Therefore, it is asserted rightly that "it is the province and duty of the Court to say what the law is."[16] Hence, the supremacy of the constitution is maintained in the sense that legislative, executive, and even then judicial decisions coming in conflict with the essence of the constitution, are declared ultra vires, and therefore void and of no legal effect.
Doctrine of judicial review properly established in American jurisprudence[17], was in fact an adoption of British doctrine of ultra vires[18], and ever since then, this principle has become part and parcel almost of all constitutional systems particularly having written constitutions including those on the West Minister model, such as those of Pakistan, India, Australia etc. This modus operandi of judicial review as a mechanism to put the organs of Government within their limits, and to maintain the procedural force of the constitution i.e., constitutionalism, has been developed effectively amongst the most of the republican polities[19] for the assertion of the rule of law and constitutional supremacy.
Judicial Review in
The principle of judicial review impliedly[20] became the constitutional feature of the Constitutions 1956 and 1962. The present Constitution 1973 like previous constitutions does not expressly provide for judicial review. It is clearly implied in certain provisions[21] of the Constitution, to be exercised through the instrument of writ jurisdiction of Superior Courts. The rational of this principle has been further developed, confirmed and followed in subsequent Superior Court's judgments. [22]
Islamic Perspective of Judicial
Review
From the Shariah view point, the Quranic ordain that, "Those charged with authority among you"[23], in fact, establishes the Governmental authority of the Islamic polity, consisting on three main organs namely, Legislature (Majlis-e-Shura) which makes the laws in the light of Shariah; Executive (Emirate) which is responsible for the administration, and Judiciary, (Qaziah) which administers the justice.
The Islamic political philosophy emphasis for a political framework which characterized with harmony and coordination of these three organs. The Holy Quran says, "Hold fast, all together, to the covenant of God, and do not separate".[24] Such integration requires the power-sharing policy among authorities i.e., legislature, executive, and judiciary. Of course, this principle seems to be embodied in the political and constitutional system as an attribute of Islamic state, as Holy Quran says, "....who (conduct) their affairs by mutual consultation………[25]"and, "…………consult them in affairs…….[26]" However, their functioning must be within the jurisdiction and limits provided for in Shariah. This state of affairs is, in fact the principle of check and balance of the Governmental powers eventually for good governance, the basic theme of the welfare state.
Islamic state contemplates a truly representative Government based on doctrine of rule of law. Accountability of Umaraa (Rulers) to Ummah (people), is a basic feature of such political system. Ummah (people) has a right to keep a constant vigil on rulers' policies, activities and performance to keep them right. For this reason, Hazrat Abu Baker (R.A), the First Caliph of Islam, is reported to say that "If I do good, support me: if I err, then set me right...Obey me as long as I obey God and His Apostle (S.A.W.S), and if I withdraw from God and His Apostle (S.A.W.S) you withdraw from me, as in that case obligation of obedience on your part to me terminates." [27] Second Caliph, Hazart Umer (R.A) exhorted that "the Government is entrusted to me, and I am accountable for it before the people." [28] This concept of governance in an Islamic state finds its true meaning and justification where the state is acting within the framework of Shariah.
"History both profane and divine teaches us that as long as time and human nature exist, there will be issues to decide and causes to adjust." [29] Though the difference of opinion is referred as blessing, it turns out to be a nuisance when resulted from abuse of power. Of course, abuse of powers is inevitable natural phenomenon particularly in matters of power exercising as "power tends to corrupt, and absolute power tends to corrupt absolutely". Therefore, such situation must be checked and resolved, otherwise the fabric of the political society will be scratched. Of course, conflict of opinions causing deadlocks cannot easily be resolved. Islamic political philosophy however is not devoid of the potential for the resolution of a dispute. For effective safeguard against a possible disagreement among, or abuse of powers by the Governmental authorities, Shariah provides the guide line, termed as 'Arbitration of Quran and Sunnah', the principle for the resolution of conflicts on the touchstone of Shariah.
Such idea is appreciated by the .Divine Law and is enshrined, in the Holy Quran, in the sense that "O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. Then, if ye differ in anything among yourselves, refer it to Allah and his Messenger, if ye do believe in Allah and the Last Day; that is best, and most suitable for final determination."[30] The last part of this verse shows that in case of a disagreement, matter requires to be decided in accordance with the Quran and Sunnah. This is the best option for ultimate resolution of conflicts among/between Governmental organs or between Governmental authority and individuals.
The Holy Prophet Hazart Muhammad (S.A.W.S) was Sharia, Ameer and Qazi of the Islamic state of Madinah. In such capacity, he pursued the principle embodied in the above mentioned Quranic provision, for the determination of the differences, happened among Ummah, on the touchstone of the Shariah. He (S.A.W.S) was committed to resolve the conflicts among the peoples, in the light of Divine commands. The Madina Pact, a constitution[31] of the Islamic state of Madina, confirms this philosophy, in which among other matters, it was agreed by the parties that in case of any dispute, the matter will be referred to the Allah, all mighty and the Holy Prophet Hazart Muhammad (S.A.W.S) for final determination. [32]
The Islamic history is evident of the fact that this principle was also practically formulated in Islamic state system. The differences[33] on the issues of return of Hazart Abu Jandal (RA), Abu Baseer (RA), and Hazart Ume Kalsoum (RA) to their claimants were resolved on the touchstone of the Shariah. In these controversial matters the Holy Prophet Hazart Muhammad (SAWS) ruled out that the return of the Hazart Abu Jandal (RA) on the demand of his father and, of Abu Baseer (RA) on the demand of his two close relatives, is binding on Muslims in the light of the Treaty of Hudaibiya[34] and Quranic commands. In this regard the Holy Quran provides as, "Those who believed and emigrated……….in the cause of Allah……….if they seek your aid in religion, it is your duty to help them, except against the people with whom ye have treaty of mutual alliance...."[35]. Whereas the case of Ume Kalsoum (RA) on the claim of her brothers, was dealt and return was refused in the light of Surah Mumtahinah which forbids the deliverance of a Muslim woman to non-Muslims. Here, the Quranic guideline goes as, "O ye who believe! When there came to you believing women refugees ……….. if you ascertain that they are believers , then send them not back to the unbelievers...". [36]
The same principle regarding the resolution of conflicts on the touchstone of Shariah, has had been followed by the righteous caliphs during their Khilafat, and subsequently by their successors as well. Once, Hazart Umer (RA) was disagreed for stressing the Muslims to minimize the amount of the dower money, and ultimately Khalifa himself reviewed his command and withdrew it[37], on the touchstone of the Holy Quran, which says, "………if ye had given ....a whole treasure for dower, take not the least bit of it back..." [38] Military action launched by Hazart Amir Moavia (R.A) was alleged by a group of Shabha (RA) led by Hazart Umro Bin Unbah (RA) on the ground that this action is contrary to the essence of the existing contract between Muslims and Christen tribe Bani Taghlub. Resultantly action was withdrawn[39] because it was not in the consonance with the provisions of Shariah that the contract must not be breached as the Holy Quran directs, "O ye believe! fulfill (all) obligations".[40] The conquest of Samer Quand made by Qatebah bin Muslim was alleged on some formal irregularities amounting to the violation of the Islamic international law. It was challenged by Buddha citizens in the Court of Qazi Asaker who declared the conquest to be repugnant to the Islamic injunctions and ordered the forces to vacate the conquered territory. [41]
This is the distinctive feature of the Divine Law[42] similar to the secular concept of the judicial review. Of course, the similarity is of the objective of holding the supremacy of the Shariah and Constitution as the case may be, in their respective state system, otherwise procedural mechanism for the application of Islamic principle of 'Arbitration of Quran and Sunnah' has had been different from that of the 'Judicial Review' in the modern judicial system When there is a fundamental difference between or among ".... those charged with authority among you ..." [43] i.e., the Legislature (Majlis-e-Shura), Executives (Emirate), Judiciary, (Qaziah), or between such authorities and individual/s, the point in dispute must be referred by either of the two sides to the arbitration of Quran and Sunnah. The Holy Quran commands, "………if ye differ in anything among yourselves, refer it to Allah and his Messenger.. ," [44] Such arbitration, as per view of Muhammad Asad[45], is to be more explicit, a body of arbitrators who, after impartial appreciation of the issue, would decide which of the two conflicting views, is closer to the spirit of Shariah. Such body of the arbitrators is a supreme tribunal which is the guardian for upholding of the supremacy of the Shariah in the Islamic state.
This tribunal should have the jurisdiction to arbitrate in all instances of disagreement, referred to the tribunal by the either sides, or even then on its own motion and decide, on its own accord, whether or not any legislative act passed by the Legislature (Majlis-e-Shurd), or any administrative act on the part of the Emirate, is in inconsonance with the basic essence of a Nass-i-Sharie (Ordinance of Quran or Sunnah).
As to composition of such tribunal, Muhammad Asad, a celebrated Islamic scholar says[46] that it is needless to say, such a tribunal must be composed of the best jurists that can be found in the community, who have not only mastered the Quran and the science of Haidth, are also fully well equipped on the contemporary affairs of the society, for it is only such man that could decide, with a degree of certainty as is granted to human intellect, whether or not a doubtful legislative act or an administrative act, is in accordance with the spirit of the Shariah. Obviously this function can be performed by an arbitral authority, the proper and technical form of which may be the judiciary (Qaziah).
Constitutional
Approach of Judicial Review in Islamic context
The Constitution 1973 possesses the
feature of Islamic character. Eco-political and lego-judicial system was
intended and designed, originally as well as subsequently, [47]
to be developed on Islamic guidelines. However, the practical formulation of
Islamic spirit went under distress during different regimes. Of course, certain
steps were taken but for vested interests of the then rulers. However, in some
matters Islamic ideology was given practical formulation in its true sense.
Among those, the establishment of the
Empowering of
This review power of Federal Shariat Court under Article 203-D
is other than to the judicial review jurisdiction of Superior Courts, provided
under Articles 184 (3) and 199 of Constitution 1973, and by necessary
implication in a number of other provisions, such as Articles 8, 142 and 143 of
the same Constitution. "The Constitution of Pakistan says Justice (Rtd.)
Fazal Karim[50], "has thus the singular distinction of incorporating
in it both the Islamic and the modern judicial review". The same has been
rightly observed by the
Judicial Review and
Initially, through the President's Order 22 of 1978, Shariat
Benches in each High Court for the Province, and Shariat Appellate Bench in the
Supreme Court of Pakistan, were established. Afterward, a
having at least fifteen years experience in Islamic law, research or
instruction".[53]
Article 203-D of the Constitution 1973
confers powers, which may be described as Original as well as 'Judicial Review'
jurisdiction, on the
The aforesaid jurisdiction of Federal Shariat Court is within the limits provided in the Constitution, which excludes certain laws from the meaning and scope of 'law' for the purpose to be tested on the touchstone of Shariah. Thus, for the ascertainment of Islamic validity of laws, "law includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of ten years from the commencement of this chapter, a fiscal law or any law relating to the levy and collection of taxes and fees or banking insurance practice and procedure."[56] Therefore, it is held in a case that Court cannot stretch its jurisdiction to the matters specially exempted and barred by the Constitution. [57] Moreover, the scope of such judicial review jurisdiction is extent to the ascertainment of the validity of legislative acts only, and it does not cover up the executive actions.
The Constitution 1973 also provides
the establishment of the Shariat Appellate Bench of the Supreme Court. This
bench consists of, "three Muslim judges of the Supreme Court; and not more
than two Ulema to be appointed by the President to attend the sitting of the
Bench as adhoc members thereof, from amongst the Judges of the Federal Shariat
Court or from out of a panel of Ulema to be drawn up by the President in
consultation with the Chief Justice." [58]
This Bench will entertain the appeals against the decisions of the
From the above discussion, it is clear
that the both
Federal Shariat Court cannot enact a
new statute, but can merely gives its opinion to the Government concerned about
an existing statute, leaving the rest to the law making organs of the state[61],
and same is the effect of the verdict of the Shariat Appellate Bench of the
Supreme Court. Such judicial review by
Conclusion and
Suggestions
The analytical study of the injunctions of Shariah and constitutional provisions of the Constitution 1973 on the subject under discussion, leads us to a conclusion presented in these lines which reflects the essence of this study as an objective.
Islamic character, the basic feature of constitutional system of Islamic Republic of Pakistan can only be practically formulated through Islamization of laws. This constitutional obligation can be satisfied through the Superior Courts along with the functioning of the other concerned authorities. Of course, Federal Shariat Court in its original jurisdiction and Supreme Court as Shariat Appellate Bench have contributed a lot in this regard under the 'Judicial Review Jurisdiction' by protecting the Islamic character of the constitution, whenever it was violated, particularly by the Government in legislative functions.
These Courts have supplemented the legislative functions which due to certain circumstances could not have been performed by the concerned authorities on the guideline provided by Shariah. They have caused the Islamization of laws, necessary for the execution of the ideology of Islamic Republic of Pakistan, and thus have got underway a silent revolution in the country through clarifying the ambiguities and confusions about Islamic status of laws, among different sections of the society, resultantly bringing the Ummah to one, point of Shariah. Of course, the review jurisdiction of Superior Courts with reference to ascertainment of the laws on the touchstone of the Shariah as provided in the Constitution 1973, is not comprehensive and well defined .Hence, consideration of the following recommendations seems to be proper for the further development and sound establishment of the principle of Judicial Review in Islamic perspective as provided under Article 302-D of the Constitution 1973.
(1) The
jurisdiction of the Federal Shariat Court conferred under Article 203-D of the
Constitution 1973, or for that matter of any other Court, is proposed to be
extended to the matters excluded from the jurisdiction of the Federal Shariat
Court by virtue of the limits in term of the definition of 'Law' provided by
Articles 203-B (c). Accordingly, Articles 203-B (c) should be amended as,
" 'law' includes any custom or usage having the force of law,
constitution, Muslim personal law, any law relating to the procedure of any
Court or tribunal, a fiscal law or any law relating to the levy and collection
of taxes and fees or banking insurance practice and procedure." However,
regarding 'constitutional provisions', jurisdiction of the
(2) Jurisdiction and powers under Article 203-D of the Constitution 1973, regarding 'constitutional provisions' should be conferred exclusively on the Supreme Court because the preservation of Islamic character' being the basic feature of the Constitution is, in fact, the constitutional obligation of the Supreme Court. Hence, the bar of jurisdiction placed upon the Supreme Court under Article 203-G "not to exercise the jurisdiction under Article 203-D", is proposed to be removed, and a new clause (4) should be added to the Article 203-D as, "Without prejudice to the preceding provisions the Supreme Court shall, if it consider that any provision of constitution is not in consonance with the injunctions of Quran and Sunnah, have the exclusive powers to make an order of the nature mentioned in this Article. For, the purpose of exercising this jurisdiction, the Supreme Court shall consist all of its Muslim judges". Whereas for ousting the jurisdiction of the Federal Shariat Court under Article 203-D of the Constitution 1973, regarding 'constitutional provisions', as suggested above under Para No. l, it is proposed to insert the words 'Subject to the constitution' in the beginning of the Article 203-D, which will restrict the jurisdiction of the Federal Shariat Court, in the presence of the above suggested clause (4) of Article 203-D regarding 'constitutional provisions'.
(3) Scope of Article 203-D of the Constitution 1973, should be extended to the executive acts of all level as well.
(4) Constitutional provisions under Article 203-C(4), (7) concerning the Federal Shariat Court, making the independence of judiciary doubtful, should be removed by making appropriate amendments in the concerned provisions of the Constitution.
These recommendations are last but not
the least to advance the scope and purpose of the doctrine of judicial review
of the legislative and executive actions including socio-economic policies of
the Government on the touchstone of the Islamic injunctions. The development of
such review will provide an effective mechanism for the clarification of
certain vague and ambiguous concepts regarding secular matters in Islamic
perspective having implications on the socio-economic and lego-political
development of
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[1]. The Holy Quran 4:59 Translation by the Presidency of Islamic
Researches, IFTA, King Fahd Holy Quran Printing Complex, Saudi Arabia.; See the
commentary on the same by the Presidency of Islamic Researches, IFTA, King Fahd
Holy Quran, Printing Complex, Saudi Arabia, p.229.
[2]. The Holy Quran 42:38 Translation by the Presidency of Islamic
Researches, IFTA, King Fahd Holy Quran, Printing Complex, Saudi Arabia See the
commentary on the same by the Presidency of Islamic Researches, IFTA, King Fahd
Holy Quran, Printing Complex, Saudi Arabia, p. 1487.
[3]. The Holy Quran 3:158 Translation by the
Presidency of Islamic Researches, IFTA, King Fahd Holy Quran, Printing
[4]. The Saheeh Bukharee No. 5188.
[5]. The Constitution 1973, 1962 and 1956,
Preamble and Article, 1.
[6]. Haq Nawas v.
[7]. See Syed Zafar Ali Shah v. General Pervaiz Musharraf, PLD 2000
SC 869.
[8]. The Constitution 1973, Articles 1,2,2-A,31,41,227-229,203-D
and Oath of the Office of President and Prime Minister.
[9]. Corpus Juris Secundum, West Publishing
Co.Vol.16, p.21.
[10]. Quoted by J. Harvey, 'The British Constitution and Politics' 5th
Ed., Macmillan Education Ltd.London, p.3.
[11]. Ibid.
[12]. Carl J. Fridrich, 'Constitutional Government
and Democracy', Oxford & IBH Publishing Co.
[13]. See, Articles 178,194 read with the Oath of the Judges, Third
Schedule of the Constitution 1973; Articles III Section 2 and VI, Section 2 of
the Constitution 1789 of the
[14]. The expression 'Judicial Review' is classified into a narrow
sense and wider sense. In the narrow sense, it is essentially collateral where
Court doesn't go into the merits, but examines only the constitutionality or
basic legality of the impound decision. In its wider sense, judicial review
includes even appeals on the merits of a decision of the Court or Tribunal
directly subordinate to the
[15]. Fazlul Qauder Chowdhury v. Muhammad Abdul
Haque, PLD 1963 S.C 486.
[16]. Marbury v. Jams Madison, 1 Cranch, 137,
[17]. See Article III, Section 3 and Article VI, Section 3 the
Constitution 1789 of the USA; See Hamilton, Federalist No. 78; Marbury
v.Madison, 1 Cranch, 137,
[18]. Kendall v.
[19]. See Robert L Maddox, Constitutions of the World, Routledge,
[20]. See The Constitutions 1956 and 1962,
Articles 22, 170 & 98 respectively.
[21]. Supra No.8,, Articles 8,142,143,
184(3)& 199.
[22]. See Among others State v. Zia-ur-Rehman PLD 1973 SC 49; Benazir
Bhutto v. Federation of Pakistan, PLD 1988 SC 416; Public-at-Large PLD 1991 S.C
459; Malik Khan v. Board of Revenue, PLD 1991 SC 824; Muhammad Nawas Sharif v
President of Pakistan, PLD1993 SC 473; Mehram Ali v Federation of Pakistan
PLJ1998 SC 145; Syed Zafar Ali Shah v. General Parvez Mushraf Chief Executive
of Pakistan PLD 2000 SC 869; Ch. Muhammad Saddique, Constitutions Petition
23/99&21/2004, decided by the Supreme Court of Pakistan on
23&24-09-2004; Mr. Justice Iftikhar Muhammad Chaudhry Chief Justice of
Pakistan v. President of Pakistan PLD 2007 Civil 618.
[23]. Supra No. 1.
[24]. Ibid, 3:103, 104.
[25]. Ibid, 42:38
[26]. Ibid 3:158
[27]. Quoted in Haq Nawaz v. Province of Punjab, 1997 MLD 299, p. 374;
See Dr. Muhammad Tahir Derwaish, 'Al Khutbath Fee Sadrulislam', Darulmaarif,
Quaherah, 1965, Vol. l, p. 274; Ibn-e-Quteebah, Al Imamah w Al Siasah, Al
Mustafa Al Babe Al Halbe Wawaladah Vol.l, p.16.
[28]. See Dr. Muhammad Tahir Derwaish, 'Al Khutbath Fee Sadrulislam'
Darulmaarif, Quaherah 1965, Vol. l, p. 274; Ibn-e-Quteebah, 'Al Imamah w Al
Siasah, Al Mustafa Al Babe Al Halbe Wawaladah,Vol.l,
p. 16.
[29]. Chief Justice Earl Warren Quoted by Justice(R) Fazal Karim,
'Judicial Review of Public Actions’,
[30]. Supra No. 1.
[31]. See Pir Muhammad Karm Shah Al-Azharee, 'Zia-ul-Nabe',
Zia-ul-Quraan Publications, Lahore Fourth Edition, 1420 H, Third Part, p.195.
[32]. Madina Pact 610 AD, Sections 23 & 42 reported by Pir Muhammad
Karm Shah Al-Azharee, 'Zia-ul-Nabe', Zia-ul-Quraan Publications, Lahore Fourth
Edition, 1420 H, Third Part, p. 185,188,189.
[33]. See Supra No.31 Second Edition,1420 A.H, Fourth Part, p. 153
&160-161; Naeem Sidiquee,' Mohsin-e-Insaniat', Islamic Publications
(Private Limited, Lahore, Twenty Seventh Edition, 1997.p.518.
[34]. See 'Treaty of Hudaibiya' reported by Pir Muhammad Karm Shah
Al-Azharee, 'Zia-ul-Nabe', Zia-ul-Quran Publications, Lahore Second Edition,
[35]. Supra No.1,8:72 ;See the commentary on the same by the Presidency
of Islamic Researches, IFTA, King Fahd Holy Quran Printing Complex, Saudi
Arabia, p.492.
[36]. Supra No. 1. 60:10.; See the commentary
on the same by the Presidency of Islamic Researches, IFTA, King Fahd Holy Quran
Printing Complex, Saudi Arabia, p. 1732.
[37]. Behequee, 'Sunnan Kubraa', Majlis Dairath-ul-Maaraf Al-Naamaniah,
First Edition 1353 H, p.7/233.
[38]. Supra No. 1,
[39]. Mahamood Ahmad Ghazi, 'Khutbat-e-Bahawalpur' (2)
[40]. Supra No. 1. 5:1.; See the commentary on
the same by the Presidency of Islamic Researches, IFTA, King Fahd Holy Quran
Printing Complex, Saudi Arabia, P. 276.
[41]. Supra No.39, P. 59-60.
[42]. Justice(R) Fazal Karim, 'Judicial Review of
Public Actions',
[43]. Supra No. 1.
[44]. Ibid.
[45]. See Muhammad Asad, 'The Principles of State, and Government in
Islam', Islamic Book Trust, KualaLumpur, 1999, P. 66
[46]. Ibid, P. 67.
[47]. See Supra No. 8, Articles 1, 2, 2-A, 31, 41,227-229,203-D and
Oaths of President and Prime Minister.
[48]. The establishment of the
[49]. Supra No.8, Articles 203-D.
[50]. Justice(R) Fazal Karim, 'Judicial Review of Public Actions'
[51]. See Muhammad Ismail Qureshy V. Federal Government of
[52]. Supra No.8, Article 203-C (2).
[53]. Ibid, Article 203-C (3A).
[54]. Ibid, Article 203-D (1).
[55]. Ibid, Article 203-D (3) (b).
[56]. Ibid, Article 203-B(C).
[57]. See Haji Muhammad Saifullah V. Federal Government, PLD 1992 FSC
376.
[58]. Supra No.8 Article 203-F (3).
[59]. Ibid Article 203-F(l).
[60]. The jurisdiction exercised by an appellate Court in appeal cases,
is in another sense a judicial review of judicial actions, classified as
'Vertical Judicial Review'. See, Vijay Lakshmi Dudeja, Judicial Review in
[61]. See Ashfaq Ahmad v. Government of
[62]. See, www.federalshariat Court.gov.pk/land.judj.html.
[63]. Ibid
[64]. Ibid
[65]. Ibid
[66]. See Habib-ul-Wahab Alkheri v. Federation of Pakistan, PLD 1992
FSC 484; Muhammad Riaz etc. v. Federation of Pakistan, etc., PLD 1980 FSC 1.
[67]. See Haider Hussain v. Government of
[68]. See In: Reference, the Specific Relief Act, 1877, PLD 1983 FSC
113.
[69]. See In ref: Islamization of Laws PLD 1985 FSC 193.
[70]. See Muhammad Salah-ud-Din v. Government of Pakistan, PLD 1990 FSC
1.
[71]. See Muhammad Iqbal Chaudhry Advocate v. Federation of
[72]. See Muhammad Ismail Qureshi v.
[73]. See In ref. Islamization of Laws, PLD 1984 FSC 40; See Ansar
Burney v. Federation of
[74]. See Syed Shair Hussain Kazmi v. Govt. of
[75]. See Dr. Muhammad Aslam Khaki & the Government of
[76]. See Kazi Abdul Hameed Siddiqui v. The Federation of