Brief overview of the doctrine of Judicial Review

The doctrine of Judicial Review enroots from the US cases of Marbury v Madison [5 US 137 – SC 1803] and M’culloch v The State of Maryland [17 US 316 – SC 1819 ref.] where it was held that the court had the power to determine the constitutionality of the a legislative act and declare it void if it was repugnant to the constitution. Recently, in General (R) Pervez Musharraf vs Federation of Pakistan [PLD 2020 LHC 285] the Lahore High Court stated that Judicial Review served the purpose of acting as a clog on the legislative authority with a view to circumvent it as ultra vires of the Constitution.

This power of Judicial Review to the national courts is enshrined in Article 184(3) and Article 199 of the Constitution whereby the Supreme Court and High Court respectively can challenge the legality of any act of the executive whereby an abuse of power has been done. This was depicted in Muhammad Rafiq vs State [2019 SCMR 846 SC] where keeping the post of Chairman NAB vacant for a longer period than prescribed by NAB Ordinance 1999 held to be an abuse by executive rendering it to be justiciable.

Subsequently, Pakistan being a constitutionally democratic republic vests its sovereignty with the constitution therefore the judges can also not exercise this power of Judicial Review arbitrarily. Article 69 of the Constitution asserts that the courts cannot call into question the validity of the proceedings on the ground of irregularity of procedure but illegality [1996 SCMR 366 SC]. The Constitution also provides immunity to certain executive members in exercise of their official power and function under Article 248 of the Constitution, this was re-enunciated in Zahur Ilahi vs Zulfiqar Ali Bhutto [1975 SCMR 383 SC].