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1-JUDICIAL REVIEW OF POLITICAL QUESTIONS

2- JUDICAL REVIEW AND PIL

3- JUDICIAL REVIEW AND JUDICIALACTIVISM.

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DOCTRINE OF POLITICAL QUESTION.

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POLITICAL QUESTION

It is a constitutional question. Where a speaking

answer is available in the Constitution. A question to be answered by the parliament.

A dispute as to parliament and political executive.

Discretional powers of the Constitutional entities.

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CASES WHERE SPEAKING ANSWER IS AVAILABLEIN THE CONSTITUTION

Appointment of the High and Supreme Court

judges. Appointment and removal of the President and

P.M.

Appointment and removal of the Ministers.

Appointment and removal of Governors.

Regulations of FATA.

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QUESTIONS TO BE ANSWERED BY THE PARLIAMENT.

To make or repeal a law.

To impose or withdraw tax.

To approve Budget.

Appointment and removal of President.

Appointment and removal of P.M.

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DISPUTE BETWEEN PARLIAMENT AND EXECUTIVE.

Dispute between Parliament and President.

Dispute between Senate and P.M/Cabinet.

Dispute between Provincial Assembly and

Governor.

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DISCRETIONAL POWERS OF THE CONSTITUTIONAL ENTITIES.

Suo motto power of the Supreme Court.

Discretional powers of the President[ appointments: Chiefsof defence forces, Governors; appointment of care taker

govt.]. P.M. power to dismiss Assembly.

Chief Ministers power to dismiss Provincial Assembly.

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SOME CASES OF POLITICAL QUESTIONS

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Mrlbury V Madison(1803)

Chief Justice, John Marshall first used the termpolitical question in 1803.

Marbury was appointed as Justice of Pease on thelast day of the going President.

His letter of appointment was to be deliveredsubsequently. New President refused to deliver this

letter to Marbury. Was refusal of the president a political question or

legal question?

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President Nixon Watergate Scandal[1974] Tapping of information of the Democrats from

their office located in Watergate building. Question of impeachment of the President arose. An investigation commission was appointed

before impeachment proceedings. President Nixon refused to handover tapes to the

commission being president and not answerable

to the commission. He argued it as executiveprivilege. Was it a political question?

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Bush and Gore Case[ 2000].

Election 2000, problem of vote counting inFlorida.

The State Court ordered for re-counting ofvotes.

Bush filed application to Supreme Courtagainst the direction of the Court of Florida.

Court stopped re-counting and loosing Bushwon..

Was it a political question?

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POLITICAL QUESTION BEFORE COURTS IN PAKISTAN

Dissolution of Assembly cases in Pakistan.

-Mulvi Tameez-ud-din case-- 1954.Governor General Gulam Muhammad dissolved Constituent Assembly-

Skinder Mirza dissolved National Assembly1958[ Dosso case].

Yahya Khan dissolved National Assembly 1969 [Aasima Jilani case 1972] . General zia-ul- Haq dissolved Bhuttos Assembly.1977[Nusrat Bhutto case 1977] General zia-ul- Haq dissolved Junejo s Assembly 1985[Haji Saif Ullah case 1989] Gulam Ishaq dissolved BB s Assembly 1990. [ Ahamad Tariq Rahim case 1990 ] Gulam Ishaq dissolved Nawaz Sharif s Assembly 1993[ Nawaz Sharif case 1993]. Sabar Shah case 1994. Farooq Lagari dissolved BB s Assembly -1996[ Benazir Bhutto case 1995]. Pervaiz Musharif dissolved Nawaz Sharif s Assembly 1999[ Zafar Ali Shah case 2000].

Validation of amendments in the Constitution by the Courts. Pakistan Lawyer Forum case 2005.LFO, 2OO2 challenged.

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MULVI TAMEEZ-UD-DIN CASE-- 1954.

Mulvi Tameez-ud-Din was president of ConstituentAssembly.

Govt. of India ( Amendment Act) 1954 was promulgated by

Constituent Assembly where Governor Generals powers

were reduced.

Mr. Gulam Muhammed was Governor General who reacted

and dissolved the Assembly.

He issued Emergency Power Ordinance,1955 in this regard.

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MULVI TAMEEZ-UD-DIN CASE-- 1954.

Mulvi Tameez-ud-Din moved the Chief CourtSind.

He pleaded for writ of prohibition : to restraintthe Governor General from interfering with theexercise of his functions as President ofConstituent Assembly.

He pleaded for writ of quo warranto: to oustministers of the Cabinet appointed by theGovernor General.

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GOVT. REPLIED

Court has not any power to issue any writ.

The section 223A which was inserted by the CA in the Govt. of India Actwas not assented by Governor General.

The Govt. of India ( Amendment Act) 1954 under which Governor

Generals powers were reduced was also not assented by GovernorGeneral.

Situation on ground

The laws or any amendments made in Govt. of India Act,1935 werenever sent the Governor General before for his approval.

Governor General was not having power to dismiss Assembly and to

issue Emergency Power Ordinance,1955 under Govt. of India Act,1935 . So many laws were operational which were not assented by the

Governor General.

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COURT,S DECISION

Chief Court Sind held in favour ofMulvi Tameez-ud-Din.

Emergency Power Ordinance, 1955 was invalidated

Govt. filed an appeal to Federal Court headed by

Justice Munir.

Meanwhile Govt. made a reference for advice of theFederal Court. Due to problem of invalidation of the

Ordinance.

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FINAL DECISION OF THE FEDERAL COURT

Chief Court Sind was not having jurisdiction to

entertain the case.

Law oh necessity {Kelson Theory)was held by

the Court.

Emergency Power Ordinance,1955 was

validated.

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PUBLIC INTEREST LITIGATION[PIL

Petition are filed on behalf of the public.

Authority: Art. 184(3). and Art. 199.

Scope: Political question litigations. Legislative judicial review cases.

Administrative judicial review cases.

Who can file PIL

- Any individual.- Political party.

- Some NGO/ any Forum.

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PUBLIC INTEREST LITIGATION CASES

Shela Zia case 1994.

Traffic muddle case Karachi-1997. Al Jehad Trust case- Appointment of judges

case.- 1996 and 1997.

Assad Ali case- Mr. Sajjad Ali Shah Case-1998.

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JUDICIAL ACTIVISM

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JUDICIAL ACTIVISM

Judicial activism is a philosophy advocatingthat judges should reach beyond the

Constitution to achieve results that areconsistent with contemporary conditions andvalues. Most often, it is associated with(modern) liberalism that believes in broadinterpretation of the Constitution which canthen be applied to specific issues.

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JUDICIAL ACTVISTS

They take constitution as a living document.

They believe that judges to have equalresponsibility as to the public welfare.

They give liberal interpretation as to the rights

of the people.

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JUDICIAL ACTIVISM VS JUDICIAL RESTRAINT

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JUDICIAL RESTRAINT

Judicial restraint means that judges should

respect to the democratic process and stay out ofpolicy debates if democracy is to thrive.

Judicial restraint means that constitution shouldnot be liberally interpreted to the derogation ofthe law of the parliament. If conflict comesparliament to be held supreme.

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SOME DOCTRINES OF JUDICAL REVIEW AS TOJUDICIAL ACTIVISM VS JUDICIAL RESTRAINT

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IMPLIED POWER DOCTRINE

Judicial review powers( legislative side or cabinet policy) ofthe Superior Court is implied from the Constitution.

Constitution does not clearly provides that who will

interpret Constitution. It is implied principle that Superior Courts will interpret the

Constitution.

To which extent, the Courts will interpret has nowherebeen mentioned in the Constitution.

The believers of this doctrine say that Court should go toany extent to interpret Constitution to extent and toprotect citizen rights.

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DOCTRINE OF ORIGINAL INTENT

When Courts interpret any law, original intent of the lawshould be seen.

Plain common sense meanings of the text of the law to be

read vis a vis Constitution. It can not be argued that actual meanings of the law are

some what different to plain meanings of the text.

A Law is a no law which is beyond the plain meanings ofthe Consitution.

Where conflict in any two Articles of the Constitution, thento see preamble of the Constitution and intent of theframers of the Constitution.

Take the Constitution as whole.

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DOCTRINE OF STRICT NECESSITY

Interpretation only when absolutely required.

Avoid interpretation, if question could beresolved otherwise.

Remand the case to the relevant forum.

( Supreme Court remanded Musharafs 27

Ordinances to the Parliament)

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DOCTRINE OF PRESUMPTION OFCONSTITUTIONALITY

Courts will presume that every law has been

made in accordance with the Constitution. To get declared any law unconstitutional,

some demonstration of its unconstitutionality

shall be required. Some one is required to be effected by the

unconstitutional law.

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