[1]JUDICIAL REVIEW

By:
LIEUTENANT COLONEL HAFIZ ZAFAR IQBAL

1.         Introduction. It is a general rule that once a public authoirty1 has given a decision, it cannot reconsider it, as the authority becomes functus officio on promulgation of the decision. Thus the power to review a decision is generally given to the authority superior to the one making the decision.2 On the other hand, the decisions of public authorities as bodies exercising judicial functions have always been subject to review by the superior courts by means of their constitutional or writ jurisdiction power. This power of review in known as the power of judicial review, whereby the courts may quash a decision on any of the grounds including that such public authority had made an error of law, had acted without jurisdiction or had acted in breach of the rules of natural justice.3 The effect of judicial review is that while exercising such power, a court may declare the decision of any public authority to be a nullity and instead of substituting the same with its own may refer it back to the same authority for reconsideration on merit and in the light of its observations. Thus where the decision is quashed because it had made an error of law, the authority or court rehears the case and decides it in accordance with correct legal principles as indicated by the court in its judgment. Appeal on the other hand, whether to a superior authority, tribunal or a court enables it to consider the correctness of the decision appealed against and if necessary to substitute the impugned decision with its own. Generally, there is no right of appeal from a tribunal unless it is expressly provided by law but there is a power of judicial review by the superior courts unless it is excluded by law. However, it has virtually become a rule of law that the superior courts exercise this power even if excluded by law, if a case fulfils the conditions attracting the exercise of powers of judicial review4.

2.      Judicial Review. According to Brian Thompson, Constitution embodies the supreme law of the land to which all legislations and governmental actions must conform. Disputes about such conformity are heard by the courts who may strike down legislations or actions, if they do not conform to the constitution. This is known as judicial review.5 E.S. Crown has viewed judicial review as the power of courts to pronounce upon the constitutionality of Legislative Acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void.6 Judicial review has also been described as the power of the superior courts to strike down a law on the touchstone of the constitution7. This aspect of judicial review is associated with the concept of constitutionalism which embodies the doctrine of tricotemy of power and bestows upon the judiciary the responsibility to protect the constitution i.e. supreme law of the land, and enforce human/fundamental rights.8 Judicial review, in its broader meanings, has also been described as the jurisdiction of courts to keep the public authorities within their ‘remit’.9 Regardless of the limitations on exercise of courts’ power of judicial review, it may be added that the term public authority is vast enough to include the Crown or the President, the Prime Minister, the Parliament, superior courts and all state authorities set up by or under the authority of Parliament and endowed with executive, legislative or adjudicative power10. It is mainly for this reason that judicial review may even lie against any order, act or decision of any of the said authorities. It is not mandatory that all decisions or acts of public authorities must always be subject to judicial review. In certain circumstances, the statutes provide for ouster clauses, as for example, the decisions of House of Lords and Supreme Court of Pakistan are not subject to judicial review; nevertheless these authorities may review their own decisions.11

3.         Sources of judicial review. The power of the superior courts to keep the public authorities within their ‘remit’ or to pronounce upon the constitutionality of a Legislative Act or declare it ultra vires the constitution originated from two sources: common law and the statutes. 12 The judicial review power which originated from the common law source may be described as the ‘supervisory review’ jurisdiction of the High Courts; and is subject to such general or particular restrictions or modifications as the Parliament may make by way of statue.13 On the other hand, the power which originated from the statutory source, whereby the courts had been enabled to hear appeals, may be designated as the ‘appellate review’ jurisdiction.14 Supervisory review jurisdiction is vested in the High Courts; while appellate review jurisdiction is vested in such courts as the Parliament may deem appropriate in the circumstances of particular types of cases. As for example: in England, since the nineteenth century there has been a comprehensive system of statutory appeals from the decisions of courts of first instance to higher courts in ordinary civil and criminal proceedings.15 Same is the position in America, India, Pakistan and other commonwealth countries.16

4.     Although judicial review power of the courts is classified into ‘supervisory review’ and ‘appellate review’; and both may fall within the pale of judicial review; but historically, the concept of judicial review is relatable only with the common law right or prerogative writ jurisdiction of the superior courts. Nevertheless this common law right of the people to invoke writ jurisdiction of the superior courts today has been assimilated in all the constitutional and statutory laws as a fundamental right which can not be taken away except in accordance with law. Our constitution also recognizes the judicial review power of the superior courts, in its Articles 199 and 184.17 Unlike constitutions of other countries, our constitution also provides a mechanism of judicial review through the institution of Federal Shariat Court which is unique in its powers, functions and jurisdiction.18 The Federal Shariat Court may examine any law or provision thereto on the touchstone of the injunctions of Islam as laid down in the Holy Qur’aan and Sunnah of the Holy Prophet (peace by upon Him); and if any such law or provision thereto is found so repugnant, it may require the President or a Governor to take such steps to amend the law so as to bring such law or provision thereto in conformity with the injunctions of Islam. Such law or provision thereto if not so amended and brought into conformity with the said injunctions, to the extent to which it is held repugnant, shall cease to have effect. The Federal Shariat Court may also call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the legality of any finding, sentence or order passed by such court.19 It is due to the exercise of this judicial power of the Federal Shariat Court that the scope of right of appeal available to the Armed Forces personnel was enlarged. Today those service personnel who are sentenced to suffer rigorous imprisonment for more than 3 months and/or dismissed from the service may prefer an appeal to the Court of Appeals constituted under the law of the respective Service i.e. Army, Air Force or Navy.20 Similarly, the Federal Shariat Court in its landmark judgement in Dr. Mahmood-ur-Rahman Faisal case21 examined the vires of various provisions of the fiscal laws of Pakistan, which related to the ‘interest’ and its effects. While deciding 115 Shariat Petitions, the Federal Shariat Court unanimously declared that interest in all its forms and purposes is prohibited in Islam and contributes towards injustice. Consequently, the provisions of the relevant banking and fiscal laws based on interest were declared repugnant to the injunctions of Islam as laid down in the Holy Qur’aan and Sunnah of the Holy Prophet (Peace be upon Him) and Article 203DD. The Federal Shariat Court having given anxious and equal opportunity of hearing to the eminent jurists, religious scholars, bankers, economists and other stakeholders declared that the existing interest-based banking system be replaced with profit/loss sharing for which Mudarabah, Musharkah and the like modes of banking may be adopted; and that interest-free loans (Qarz-e-Hasanah) may also be offered while the nature of bank deposits be changed from loans to investment. The judgement was welcomed by a reasonable strata of the society and was to take effect from 1st day of July 1992; however, it was assailed before the Shariat Appellate Bench of the Supreme Court in Dr. M. Aslam Khaki v Syed Muhammad Hashim case.22 The Supreme Court while conceding the verdict of the Federal Shariat Court to the extent of prohibition of interest in all its forms and practices, extended the operation of the judgement for an unspecified time so as the give reasonable time to the government to prepare themselves, train the requisite machinery and review/amend the existing laws for the transition of the conventional banking to the Islamic banking based on interest-free transactions. Resultantly, the dream of interest-free banking and welfare-based financial transactions could not be transformed into reality which resulted into deteriorated economy and mass-scale corruption in the financial institution due to lack of ownership and participation of the accounts holders/creditors in the accountability and decision making. This led to various corruption scams one after the other while the bank deposits of general public were used to oblige the kiths and kins and promote fraud, corruption and misappropriation. This is evident from a case subjudice in the Supreme Court wherein recovery of Rs. 256 billion loan written off by the banks between the years 1971and 2009 has been prayed. As per the report submitted by the State Bank before the Supreme Court, Rs.74 billion loans were written off during 2008-09 while 56,336 cases of recoverable loans to the tune of Rs. 215 billion till Dec 2009 were pending before different courts.23

5.         Reverting to the judicial power of the Federal Shariat Court, it may not be out of context to high light another case24, wherein different provisions of the Pakistan Prisons Rules 1978 relating to the prisons, prisoners and prison discipline as well as Section 382B of the CrPC were challenged before the Federal Shariat Court for being repugnant to the injections of Islam. The Federal Shariat Court having examined the said provisions threadbare on the touchstone of the Holy Qur’aan and Sunnah of the Holy Prophet (Peace Be upon Him) declared some of them as repugnant to the injunctions of Islam and Article 203DD of the Constitution; and directed the President, Governors and the concerned publication authorities to bring them in line with the teachings of Islam and give them the requisite effect by amending the relevant provisions of law, else the impugned provisions would be deemed to have been amended accordingly. The upshot of the said judgement, inter alia, may be delineated as follows:-

a.       The Federal Government and concerned Inspector Generals of Prisons shall ensure that no prisoner is transferred arbitrarily from one prison to another against his will; and that he is served with a prior notice while any transfer without his consent shall be subject to appeal before the District and Session Judge.

b.       The period of accused’s detention awaiting trial or its finalization shall be deducted from the quantum of the sentence of imprisonment awarded by the court or adjusted against the imposition of fine; and Section 382B of the CrPC shall be amended and have effect accordingly.

c.       Instead of exiting diet money of Rs.3, a prisoner on transfer will get minimum diet money of Rs. 50 per meal which shall be revised after every 3 years.

d.       The married prisoners may be allowed to avail a week’s parole every four months to maintain their families and children, while the lifers and condemned prisoners may be arranged family union in the family quarters within the prison walls.

e.       No prisoner under death sentence shall be treated as a condemned prisoner before the confirmation of this sentence i.e. till it becomes executable.

f.       The prisoners should be regularly compensated like the government servants for the labour performed by them.

g.       There shall be no restriction on the prisoner to seeking permission from the District Coordination Officer for issuing any cheque exceeding the amount of Rs. 5000 or more; notwithstanding that cheque book of the prisoner may be kept in safe custody and the cheque countersigned by the Deputy Superintendent Prison.

6.       The Federal Shariat Court in a recent case25 also reviewed the Protection of Women (Criminal Laws Amendments) Act 2006, Anti-terrorism Act 1997 and Control of Narcotics Substance Act 1997 on the touchstone of Article 203DD of the Constitution of Pakistan and on 22 December 2010 done away Sections 11 and 28 of the Protection of Women (Criminal Laws Amendments) Act 2006, Section 25 of the Anti- terrorism Act 1997 and Sections 48 and 49 of the Control of Narcotics Substance Act 1997 as violative of the injunctions of Islam, besides directing the Federal Government to make necessary amendments to bring them in conformity with the judgement of the court by 22 June 2011; whereafter the impugned provisions shall cease to have effect. Through the said judgement, the Federal Shariat Court recognized and validated, inter alia, the overriding effect of the Offence of Zina Ordinance 1979 and the Offence of Qazaf Ordinance 1979 on any other law. However, the effect of this decision of the Federal Shariat Court has been put into stalemate as the same has been assailed in the Supreme Court.

7.       Notwithstanding the judicial review power of the Federal Shariat Court brief reference to which was desirable while discussing judicial review in Pakistan, the focus of our discussion shall remain the judicial review as a common law right or judge-made law as bestowed upon the superior judiciary.

8.       History of judicial review. The history of judicial review may be traced back in the writings of Greek philosophers Plato and Socrates, who advocated the concept of supremacy of natural law vis-à-vis ordinary or man-made laws,26 and Bracton, a thirteenth century Roman writer, who advanced the idea of supremacy of law vis-à-vis the ruler or the king, wherein the king was not subject to men but to God and the law, as the law had made him the king.27 It was an era when constitutionalism was not in vogue; and any enactment or provision thereto which was against the sacrosanct or jus believes of the Romans was to be struck off on the anvil of such believes.28 The history of judicial review in England is related to the decision of Chief Justice Coke in Bonham’s case wherein it was held that where an act of parliament is against common right or reason , the common law will control it and judge such act as void;29 or in the simple words, that any Act of Parliament which was against the common law right or reason would be adjudged void. Following the dictum of Coke, Chief Justice Hobart in Day v Savadge30 observed that an Act of Parliament which is against the natural justice, propriety and equity is void in itself. Another surviving example of doctrine of judicial review is found in London v Wood31 wherein Chief Justice held: it is against all laws that the same person shall be party and judge in the same cause. If an Act of Parliament should ordain that the same person shall be party and judge, or which is the same thing, judge in his own cause, it would be void Act of Parliament.32 Unfortunately, the doctrine of judicial review could not last long in England because the Parliament had neutralised the supremacy of King with its own; and the doctrine of judicial review was replaced by Parliamentary Sovereignty, when Justice Wills in Lee v Bude and Torrington Junction Rly Co33 held “we do not sit here as a Court of Appeal from the Parliament; if an Act of Parliament has been obtained improperly, it is for the Legislature to correct it by repealing it but so long as it exists as law, the Courts are bound by it”. Consequently, the English Judiciary while recognizing supremacy of the Parliament abandoned the concept of judicial review. Nevertheless, the power of judicial review under the English law is being exercised by way of Application of Judicial Review, a procedure which was primarily introduced by the Judges themselves and given statutory assent in terms of Section 31 of the Supreme Court Act, 1981.

9.       The history of judicial review in America is associated with the supremacy of constitution34 and finds its roots in the historic judgement pronounced by the Supreme Court of America in William Marbury v James Madison wherein Chief Justice John Marshall while propounding the doctrine of judicial review made eloquent remarks:-

          The Constitution is either superior paramount law unchangeable by ordinary means or it is on a level with ordinary Legislative Acts, and like other Acts, is alterable when the Legislature shall please to alter it. Certainly all those who framed the written Constitution contemplate them as forming the Fundamental and Paramount law of the nation and, consequently the theory of every such Government must be that an act of Legislature repugnant to the Constitution is void. And further it is emphatically the province and duty of the judicial department to say what the law is. 35

10.     Notwithstanding the instances of welcome and appreciation by the general public, unfortunately the experiences of exercise of judicial review power have not always been happy and encouraging. It may be recalled that in the mid 1930s,when thirteen Acts of the Congress connected with New Deal Programme were invalidated by the American Supreme Court headed by Chief Justice Hughes, President Roosevelt gave an open threat to pack the Court; while the Supreme Court of Pakistan headed by Chief Justice Iftikhar Muhammad Chaudhry was actually sacked by President General Pervez Musharraf vide Proclamation of Emergency on 3 Nov 200736, which led to the historic lawyers movement for restoration and independence of judiciary, culminating into unprecedented resuming of the offices by the deposed judges of the superior judiciary. The exercise of judicial review power has evoked both admiration and critical speculations. Professor Schwartz remarked that it should not be forgotten that no matter how we may gross over it, judicial review is basically an undemocratic institution.37

11.     As regards the judicial review in Pakistan, it may be reminded that till incorporation of Section 223-A to the Government of India Act, 1935, on 16th July, 1954, no power of judicial review was available to the superior courts.38 Later, the power of judicial review was bestowed upon the superior courts in the successive constitutions of Pakistan. However, this power had not been absolute but subject to certain fetters of ouster clauses. That is why the superior courts had been reluctant in exercising their judicial review power, as may be observed in Dosso and Asma Jilani cases39, wherein the Supreme Court refused to grant relief relying on Kelsen’s theory and on the ground of state necessity. Even in Nusrat Bhutto case,40 despite having observed that on no principle of necessity could the power of judicial review be taken away, the Supreme Court while invoking the doctrine of state necessity did not give any substantial relief to the petitioner. The dictum of the Supreme Court in the ibid case as to the power of judicial review was followed in a series of cases including Syed Zafar Ali Shah, Wasim Sajjad and recently decided Tikka Iqbal Muhammad Khan cases;41 wherein it had been the unanimous stand endorsed by the Supreme Court that even an oath taken by or administered to the judges of the superior courts can not restrict the judicial review power and derogate from the legal position that the courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the constitution or the law means or does not mean even if that particular provision is the one seeking to oust jurisdiction of the court;42 and that the superior courts shall have the power of judicial review and judge the validity of any act or decision of the Chief of the Army Staff or the president, notwithstanding the ouster of their jurisdiction.43

12.     The judicial history of Pakistan is enriched with the case law wherein the superior judiciary exercised its inextricable power of judicial review; however, it may not be possible to encompass all of them. Nevertheless few significant cases decided in the recent past are cited below for ready reference:-

a.       Al-Jehad Trust v Federation of Pakistan44

b.       Mian Muhammad Nawaz Sharif v President of Pakistan45

c.       Khan Asfandyar Wali v Federation of Pakistan46         

d.       Wasim Sajjad v Federation of Pakistan47

e.       Ghulam Abbas Niazi v Federation of Pakistan48

f.       Federation of Pakistan v Raja Muhammad Ishaque Qamar49

g.       Syed Zafar Ali Shah v Gen Pervez Musharaf 50

h.       Wajihuddin Ahmad v Chief Election Commissioner Cases51

i.        Tika Iqbal Muhammad Khan v Gen Pervez Musharaf Cases52

j.        Sindh High Court Bar Association v Federation of Pakistan Cases53

k.       Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of Pakistan54

l.        Nadeem Ahmed Khan Advocate v Federation of Pakistan55

m.      Dr Mobashir Hassan v Federation of Pakistan56

n.       Bank of Punjab v Haris Steel Industries57

o.       Rana Aftab Ahmed Khan v Muhammad Ajmal58

p.       Haji Nasir Mehmood v Mian Imran Masood59

The analysis of the above case law depict the legal competence and resolve of the superior judiciary to uphold the rule of law and follow due process of law, without falling prey of the technicalities, may that affect the highest public authorities including even the head of the state or the government or the judiciary itself. It may not be out of context to appreciate that the judgement of the Supreme Court in Sindh High Court Bar Association supra in fact is a verdict against the judiciary itself i.e. those members of the superior judiciary who despite having taken the oath to protect the constitution could not bear the pressure and failed to stand by their legally and morally well trenched brothers in compliance of the constitutional requirement to ensure independence of judiciary, and recognition of the restraint of the chosen representatives of the people of Pakistan, who laid their hands off and did not validate any of the extra-constitutional acts by the President/the Chief of the Army Staff, may that be under the influence of their conscience, public opinion or constitutional obligations. This verdict set the precedence for the whole world and demonstrated that success may not be achieved without whole hearted struggle, determination, public support and will to sacrifice your own lives and peers. Sequel to the above judgement, many able judges of the superior judiciary who were appointed in pursuance of the Proclamation of Emergency of 3 November 2007 either ceased to hold their offices or resigned; while contempt proceedings were initiated against some of them, amongst whom some tendered unconditional apology and their cases were dropped; whereas, some of them, who having taken oath under the Provisional Constitution Order were made dysfunctional, including Mr. Justice Abdul Hameed Dogar (Retd) opted to defend their action before the court.

13.     The above reference to the case law is just a sample out of the host of case law in the judicial history of Pakistan wherein the power of judicial review was exercised by the superior judiciary. Most of the cases on the issue including the cases of Zia-ur-Rehman, Pir Sabir Shah, Mrs Benazir Bhutto, Mrs Shahida Zaheer-ul Islam Abbasi, Liaqat Hussain and Pakistan Steel Mills etc remained unattended due to obvious time and space constraint; while few of such cases like Reko Diq Gold and Copper Mines, Liquefied Natural Gas (LNG), National Insurance Company Limited (NICL), Hajj Corruption, Loans Written off, Shoulder Promotions in Punjab Police, Appointment of NAB Chief, Missing Persons, Dysfunctional Judges, Corruption by Former Chairman of Pakistan Steel Mills, Controversy on Telecasting Rights of Cricket World Cup 2011 between Geo and PTV are still subjudice; therefore, may not be brought within the purview of this discourse.

14.     Conclusion. It is an inalienable constitutional right and obligation of the superior judiciary recognized in all the civilized societies since ages to exercise the right of judicial review. A cursory review of the above case law suggests that unless the judiciary acts within its constitutional limit and exercise self-restraint, neither it may deliver justice nor get its orders executed, notwithstanding the provisions of Article 190 of the Constitution which stipulates that all executives and judicial authorities shall act in aid of the Supreme Court. Judicial review must, therefore, remain strictly judicial and in its exercise, judges must take care not to intrude upon the domain of the other branches of Government.60 The moral and legal standing of the decisions of the judiciary may be fortified by the public opinion only when it delivers fearless and fair, expedient and inexpensive as well as across the board legal justice. As observed by Justice Jawwad S. Khawaja in Sindh High Court Bar Association case61, there is a different between writ of the government and writ of the state. As writ of the government may refer to the writ of the executive, writ of the judiciary may be treated as supremacy of one organ of the state over the other; whereas the judiciary is to strive for establishment of the writ of the state, of which it is an integral part, and protection of the constitution, of which it is a creation. The judiciary is to dispel and repel even a smallest doubt and apprehension that the exercise of judicial review power is motivated by its desire to remain supreme; rather it is to maintain such an equilibrium whereby the executive, legislature and judiciary are seen to be working in an harmonious manner without transgressing the domain of the other, wherein the role of the judiciary as the sole arbiter and interpreter of the law and the constitution shall remain predominant.

REFERENCE NOTES

1.       The term public authority includes the crown, the parliament, the superior courts and other state authorities set up by or under the authority of parliament and endowed with executive, legislative or adjudicative powers; as observed in C.T. Emery, Judicial Review, Sweet & Maxwell Ltd, London, 1986, pp.3 and 4.

2.       However, at times authorities are given power to review their own decisions in certain circumstances. For example, see Constitution of Pakistan, 1973, Articles 188 and 203-E(9) which provide that the Supreme Court and the Federal Shariat Court respectively shall have power to review any judgement pronounced or decision given or order made by it.

3.       David Foulkus, Introduction to Administrative Law, Butterworth, London, 1976, pp. 84 and 85. See also Syed Zafar Ali Shah v Gen Pervez Mussharaf (PLD 2000 SC 869), Tika Iqbal Muhammad Khan v Gen Pervez Musharaf (PLD 2008 SC 6-Short order, and PLD 2008 SC 178), State Life Insurance Corporation v Jaffar Hussain (PLD 2009 SC 194), Sindh High Court Bar Association v Federation of Pakistan Cases (PLD 2009 SC 879, PLD 2010 SC 1151, PLD 2010 SC 1161), Dr. Mobashir Hassan v Federation of Pakistan (PLD 2010 SC 1-Short order, and PLD 2010 SC 265), Bank of Punjab v Haris Steel Industries (Pvt) Ltd (PLD 2010 SC 1109), Aftab Ahmed Khan v Muhammad Ajmal (PLD 2010 SC 1066) and Haji Nasir Mehmood v Mian Imran Masood (PLD 2010 SC 1089) which are amongst some of the latest cases on the subject of judicial review.

4.       See for example: Brig (Retd) F.B.Ali v State( PLD 1975 SC 506), Ms. Benazir Bhutto v Fed of Pakistan (PLD 1988 SC 416), Mrs. Shahida Zahir Abbasi v President of Pakistan (PLD 1996 SC 632), Liaqat Hussain v Federation of Pakistan (PLD 1999 SC 504), Syed Zafar Ali Shah v Gen Pervez Mussharaf,(PLD 2000 SC 869), Tika Iqbal Muhammad Khan v Gen Pervez Musharaf (PLD 2008 SC 6-Short order, and PLD 2008 SC 178), State Life Insurance Corporation v Jaffar Hussain (PLD 2009 SC 194) and Sindh High Court Bar Association cases supra.

5.       Brian Thompson, Text book on Constitutional and Administrative Law, 1997, p. 397. See also U.S Constitution, Article VI, Section 2 and the Constitution of Pakistan 1973, Article 8.

6.       E.S. Crown: Essay on the Judicial Review in Encyclopaedia of Social Sciences, Vol-VIII, p. 457.

7.       Syed Zafar Ali Shah supra (p.1123)

8.       Dr Shoukat Hussain, Judicial Review of Legislation – A Powerful Mechanism and its Historical Over-view, PLD 2009 Journal 19 (pp. 19, 20) and Syed Zafar Ali Shah supra (p.1121)

9.       C.T. Emery above, pp.3, 23, 37. The terms ‘remit’ refers to the special legal competence (duties and powers) with which a public authority is invested in order to fulfil the purpose for which it exists.

10.     There are series of cases wherein the superior courts have exercised their power of judicial review to examine the vires of orders of the President, Acts of Parliament etc. See for example: Khan Asfandyar Wali v Federation of Pakistan (PLD 2001 SC 607), Dr. Mobashir Hassan v Federation of Pakistan (PLD 2010 SC 1-Short order, and PLD 2010 SC 265), Nadeem Ahmed Khan Advocate v Federation of Pakistan (PLD-2010 SC 1165) and cases mentioned in note 1and 4 above.

11.     For power of the Supreme Court or Federal Shariat Court to review its own decision, see note 2 above.

12.     C.T. Emery above, pp.29, 37.

13.     Ibid pp 38, 39

14.     Ibid p 29.

15.     Ibid pp 41, 42. It may be stated that courts are not the only public authorities invested by statutes with jurisdiction to hear appeals from the decisions of other public authorities, but we shall not touch upon this issue, as our concern at the moment is judicial review.

16.     See for example: Constitution of Pakistan 1973, Article 185; CPC Sections 96, 100, 104 and 109; CrPC Sections 405-411A, PAA Sections 133A and 133B.

17.     Constitution of Pakistan 1973, Article 199 and 184 (3) provide for power of judicial review of High Courts and Supreme Court respectively; whereas, CPC Section 115 provides for revision whereby the High Court may call for record of any case from any subordinate court for the avowed purpose.

18.     The Constitution of Pakistan 1973, Article 203-D.

19.     The Constitution of Pakistan 1973, Article 203-DD.

20.     PLD 1985 FSC 365 and PLD 1989 SC 6.

21.     Dr. Mahmood-Ur-Rahman Faisal v Secretary Ministry of Law….. (PLD 1992 FSC 1)

22.     PLD 2000 SC 225.

23.     DAWN, Islamabad, 15 Feb 2011, p.12

24.     Dr. Muhammad Aslam Khaki v The State (PLD 2010 FSC 1)

25.     Abdur Razzaq Aamir v Fed of Pakistan (PLD 2011 FSC 1). Also DAWN Islamabad, 23 Dec 2010.pp 1, 5, 8

26.     Dr Shoukat Hussain above, pp 22, 23.

27.     Dr Shoukat Hussain above citing D’ Entreves, p 86; Mailand at 100-4, Mellwain, C.H, Constitutionalism- Ancient and Modern, Ch 4.

28.     Rajan Dargan, Judicial Review and Judicial Making Process, AIR 1999 Journal 227 citing Bhandari, Basic Structure of Indian Constitution, p 297.

29.     Rajan Dargan above citing Cokes Reports 114 (1610 (8) Co-Rep 114a: 77 ER 646).

30.     Rajan Dargan above citing Cokes (1614) Hobart 85: 80 ER 235.

31.     Rajan Dargan above citing Cokes (1710) 12 Mod 669: 88 ER 1592

32.     Ibid, p 697.

33.     Rajan Dargan above citing (1871) LR 6 p.574: 24 LT 827: 19 WR 954.

34.     See U.S Constitution, Article III, Section 2

35.     2 Law Ed. 60, (1803) 1 Cranch 137.

36.     See Sindh High Court Bar Association v Federation of Pakistan Cases (PLD 2009 SC 879, PLD 2010 SC 1151 and PLD 2010 SC 1161).

37.     R.C.S. Sarkar, “Judicial Review” in the Framework of Indian Politics, p.101.

38.     Major General (Retd) Tajjamal Hussain Malik v Federal Government of Pakistan, PLD 1981 Lah 462(468).

39.     The State v Dosso (PLD 1958 SC 533) and Miss Asma Jilani v Govt of the Punjab (PLD 1972 SC 139).

40.     PLD 1977 SC 657. Also see Fed of Pakistan v Ghulam Mustafa Khar (PLD 1989 SC 26).

41.     Syed Zafar Ali Shah v Gen Pervez Musshraf (PLD 2000 SC 869) and Wasim Sajjad v Federation of Pakistan (PLD 2001 SC 233) and Tika Iqbal Muhammad Khan v Gen Pervez Musharaf (PLD 2008 SC 178, PLD 2008 SC 6 (short order) respectively.

42.     See Wasim Sajjad supra, p.299.

43.     Tika Iqbal Muhammad Khan v Gen Pervez Musharaf (PLD 2008 SC 6(12), PLD 2008 SC 178). See also Al-Jehad Trust v Federation of Pakistan (PLD 1996 SC 324), State v Zia-ur Rehman (PLD 1973 SC 49), Syed Zafar Ali Shah case supra etc.

44.     PLD 1996 SC 324.

45.     PLD 1993 SC 473.

46.     PLD 2001 SC 607.

47.     PLD 2001 SC 233

48.     PLD 2009 SC 866.

49.     PLD 2007 SC 498.

50.     PLD 2000 SC 869.

51.     PLD 2008 SC 13 and PLD 2008 SC 25.

52.     PLD 2008 SC 6-Short order, PLD 2008 SC 178 and PLD 2008 SC 615.

53.     PLD 2009 SC 879, PLD 2010 SC 1151 and PLD 2010 SC 1161.

54.     PLD 2010 SC 61.

55.     PLD 2010 SC 1165.

56.     PLD 2010 SC 1(short order) and PLD 2010 SC 265.

57.     PLD 2010 SC 1109.

58.     PLD 2010 SC 1066.

59.     PLD 2010 SC 1089.

60.     Brig (Retd) Imtiaz Ahmad v Government of Pakistan (1994 SCMR 2142,p. 2153). Also ratified in Syed Zafar Ali Shah supra, p. 1123.

61.     PLD 2009 SC 879 (1343).


[1].          The writer is an officer of the Judge Advocate General’s Department of the Pakistan Army and serving as Assistant Judge Advocate General in one of the defensive Corps of the Pakistan Army. He is LL.M, LL.B, MPA and MA; and contributes in Legal Journals.