Judicial Review of Public Actions: Pakistan
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Judicial Review of Public Actions
September 10, 2006
REVIEWS: The voice of justice
Reviewed by Nasira Iqbal
Justice Fazal Karim’s tome on judicial review is a labour of love. His abiding interest in this theme commenced with his entry into the legal profession almost half a century ago. The present work, completed five years after his retirement as judge of the Supreme Court of Pakistan, is the culmination of his experience at the bar, the bench and a lifetime of research. If the cardinal virtue of poetry is love, the considered virtue of prose is justice. This is a book of prose and its virtue is justice.
This is a law book, yet knowledge and learning have been gleaned from a vast variety of sources. It has been said that the glory of lawyers, like that of men of science, is more corporate than individual. Their labour is an endless organic process and this book provides ample proof of it.
The book is divided into 11 parts covering the length and breadth of the scope of judicial review. This he describes as “Judicial power in action” or the practical aspect of the rule of law.
In part one of the book, the author introduces the doctrine of judicial review and the relationship between judicial power, jurisdiction and judicial review. The interpretation of the fundamental law plays a vital role in understanding the principle of judicial review. While emphasising that the constitution is not a code of rights only; it lays equal stress on obligations especially the obligation to obey. Reference is made to Al-Quran, Sura 4:59:
“O ye who believe! Obey Allah, and obey the Messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the Messenger if ye are (in truth) believers in Allah and the Last Day.”
Hazrat Abu Bakr explained this verse in his first speech as Caliph: “Obey me as long as I obey God and His Apostle; and if I withdraw from God and His Apostle, you withdraw from me, as in that case obligation of obedience on your part to me terminates.”
According to the author, Article 98 of the 1962 Constitution, which codified the law of judicial review, is an original contribution to this branch of the law by Mr Manzur Qadir. “This article is a rare combination of the skills of a legal draftsman and the intellectual power of a great lawyer.”
In chapter five, he describes the relationship between the judicial and political branches of government. In the constitutional dispensation of trichotomy of powers, the judiciary is the organ most competent to interpret the constitution, therefore, it must be independent. Judicial independence requires security of tenure, financial security and administrative security. It was enunciated in the Al-Jihad Trust case that the mode of appointment of judges has close nexus with the independence of the judiciary. Many a jurist met his Waterloo through the principles enunciated in this landmark case. According to Justice Fazal Karim, “Justice means to remain within one’s proper sphere; and injustice means to overstep that sphere.” The lion who headed the bench, claimed immunity from his articulation, but ultimately fell prey to his own roar. The principles proclaimed in this case were soon dispatched to the dust bin of history and along with it, to a large extent the doctrine of independence of the judiciary. The nature and relation of judicial interpretation with judicial review is important in resolving, conflicting, constitutional, provisions and can be a source of law. Judicial activism, if judiciously exercised, is imperative to allow for growth and development of the constitution according to changing requirements. Judicial restraint is exercised by a judge to consistently remain within the limits of his judicial authority. Tensions inevitably arise from judicial review. It is a weapon in the hands of judges but they must observe constitutional limits which if not observed, the action ceases to be judicial.
The author deals at length with the topic of contempt of court. In Ardeshir Cowasjee’s case (PLD 1998 SC 823), the Supreme Court took the most liberal view of the right of freedom of speech and expression and the most restricted view of the power to punish for contempt. Fair comment, in good faith and in the public interest couched in temperate language, on the working of a court does not constitute contempt. Justice Fazal Karim counsels that the power to punish for contempt should be exercised cautiously in order to protect the freedom of expression and freedom of the press.
In part IV, while discussing legislative power, the author comments on the validity of law-making by Ordinances, which he describes as a legacy of British times. An ordinance being a temporary statute, cannot, despite Article 264 of the constitution, permanently repeal a permanent enactment, or make a textual amendment of a permanent character. Ordinance making is not immune from judicial scrutiny, since under a written constitution, the court’s duty is to see that the constitution is not infringed and to preserve it inviolate.
The doctrine of precedent or stare decisis ensures that courts will act in a predictable manner bound by their previous decisions. It is in the interest of certainty, efficiency and economy of the effort that precedents are followed. But sometimes over-ruling becomes necessary to ensure that the law keeps pace with societal perceptions and expectations (e.g. Brown v. Board of Education). For similar reasons the Supreme Court of Pakistan does not strictly follow the doctrine of precedent in constitutional cases.
The author relates an interesting anecdote on the uncertainty produced by frequent changes in case law:
An enterprising law student, in the days of Lord Denning, wrote to The Times: “Sir, I should esteem it a personal favour if Lord Denning should refrain from making further changes in the law until I have sat for my finals.”
The author reminds us that the president’s power to dissolve assemblies is not unfettered and absolute, for that would be constitutional blasphemy; and that the word “situation” in Article 58(2)(b) is not without significance, “Just as there is nothing without use in God’s earth, so there is nothing useless in a legislative measure.”
The cases under Article 58(2)(b) of the constitution were great cases, but in the words of Justice Holmes, “great cases, like hard cases, make bad law.” Justice Fazal Karim comments that after the removal of this article these cases have become irrelevant.
The literary and scholarly merit of the book reaches a high water-mark in the discussion on the esoteric distinction between judicial activism and judicial restraint in part XI which discusses the Leviathan — the extra constitutional doctrine of State Necessity which was introduced by Chief Justice Munir in the governor general’s reference (PLD 1955 FC 435), and further developed in the controversial Dosso’s case (PLD 1958 SC 387). However, Justice Hamood-ur-Rehman in Asma Jillani’s case (PLD 1972 SC 139), held that the theory of successful coup d’etat and the consequences flowing from it were wholly unsustainable and such illegal removal of a duly constituted government was held to be usurpation; but Ziaul Haq’s coup d’etat was again validated through adoption of the Islamic doctrine of Iztirar in Nusrat Bhutto’s case (PLD 1977 SC 657) and the present martial law imposed on October 12, 1999, was again validated in the case of Syed Zafar Ali Shah vs. Pervez Musharraf (PLD 2000 SC 869). This judgment gave the general the power to amend the constitution without disturbing its salient features and he was given a period of three years for achieving his declared objectives and restoring democracy.
Justice Fazal Karim opines that the doctrine of necessity on which rests the power to suspend all or part of the constitution, is false. He has cited a famous American case and the judgment of Ajmal Mian CJ in Liaquat Hussain vs. Federation of Pakistan (PLD 1999 SC 504) to support his views, with emphasis on the adverse effects which its adoption has produced, namely (i) it has encouraged military takeovers and (ii) it has retarded, rather stunted the growth of democracy.
Law books generally make difficult reading. A cynic has described it as eating sawdust without butter. Indeed, law cannot be made as easy as a love story, but to anyone who is interested in the law in general, and judicial review in particular, this book will provide fascinating reading.
Judicial Review of Public Actions (2 Volumes) By Justice (R) Fazal Karim Pakistan Law House, Pakistan Chowk, Karachi Tel: 021 - 2212455, 2639558, 2627549. Email: pak_law_house@hotmail.com ISBN Vol. I: 969-8372-07-5 & Vol. II: 969-8372-08-3 1,492pp. Rs 3,500 (for the set)
