Judicial Review in Pakistan
Judicial review is the power of superior courts to examine the validity of executive actions and legislative enactments against a higher norm — the Constitution. In Pakistan, judicial review has evolved from a modest power of certiorari into an expansive public-interest litigation jurisprudence under Article 184(3).
The competence of a superior court to scrutinise legislative or executive acts and, if found inconsistent with the Constitution, declare them void. In Pakistan it derives from Articles 8, 175(2), 184 and 199 of the 1973 Constitution and is itself part of the basic structure.
Constitutional sources
| Article | Provision |
|---|---|
| 8 | Laws inconsistent with fundamental rights void |
| 175(2) | No court shall have any jurisdiction save as conferred by Constitution or law |
| 184(1) | Original jurisdiction of SC in inter-governmental disputes |
| 184(3) | SC's enforcement jurisdiction for public-importance fundamental-rights cases |
| 187 | Power to issue directions, orders or decrees for complete justice |
| 188 | Review of judgments by SC |
| 189 | Decisions of SC binding on all courts |
| 199 | Writ jurisdiction of High Courts |
| 203 | High Court's supervision over subordinate courts |
Article 199 — High Court writ jurisdiction
High Courts may issue:
- Habeas Corpus (Art. 199(1)(b)(i)) — production of an unlawfully detained person.
- Mandamus (Art. 199(1)(a)(i)) — directing performance of statutory duty.
- Prohibition (Art. 199(1)(a)(i)) — restraining inferior tribunal from acting outside jurisdiction.
- Certiorari (Art. 199(1)(a)(ii)) — quashing orders of inferior tribunals.
- Quo Warranto (Art. 199(1)(b)(ii)) — challenging holding of public office.
The High Court may act if (i) no other adequate remedy exists, (ii) the act is "without lawful authority and of no legal effect", and (iii) the applicant has standing.
Article 184(3) — public-importance jurisdiction
Article 184(3) gives the Supreme Court extraordinary original jurisdiction to enforce fundamental rights in matters of public importance. Three thresholds — public importance + fundamental rights + State action — must coincide. Locus standi has been liberalised since Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, in which Nasim Hasan Shah J. held that "the traditional rule of locus standi can no longer be invoked... in matters concerning fundamental rights".
- Suo motu action: the Court may proceed on its own motion, on a petition, or on a letter.
- Public-interest litigation (PIL): relaxed standing, no court fee, often class-action effect.
- Review under Article 188 limited to errors apparent on the face of the record.
- Article 187: power to issue any direction "for doing complete justice" — wide remedial sweep.
- Article 8(3)(b): laws relating to armed forces, police and the like are immune from fundamental-rights challenge.
Doctrine of basic structure
Whether the judiciary can strike down constitutional amendments that violate the Constitution's basic features is contested. The Indian Supreme Court adopted the doctrine in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461. In Pakistan:
- Hakim Khan v. Government of Pakistan PLD 1992 SC 595: refused full Indian-style adoption.
- Mahmood Khan Achakzai v. Federation PLD 1997 SC 426: tentatively recognised "salient features".
- District Bar Association Rawalpindi v. Federation PLD 2015 SC 401: upheld 18th and 21st Amendments but observed that judicial review of constitutional amendments is competent where they violate salient features — namely democracy, federalism, parliamentary form and independence of judiciary.
Judicial activism cases
| Case | Significance |
|---|---|
| Shehla Zia v. WAPDA PLD 1994 SC 693 | Environment as part of right to life |
| Al-Jehad Trust v. Federation PLD 1996 SC 324 | Judges' appointment, separation of powers |
| Air Marshal Asghar Khan v. Federation PLD 2013 SC 1 | Distribution of money to politicians by ISI |
| Reko Diq case PLD 2013 SC 545 | Award challenged on national-interest grounds |
| Faisal Vawda disqualification 2021 SCMR | Article 62/63 enforcement |
| Imran Khan v. Mian Nawaz Sharif PLD 2017 SC 692 | Panama Papers; trichotomy of powers |
Limitations on judicial review
- Political questions doctrine — though not strictly observed, certain political matters (treaty negotiation, war) lie outside review.
- Article 8(3) excludes service laws of armed forces.
- Article 239(5)–(6) declares amendments to the Constitution not justiciable — prima facie, but tempered by basic-structure jurisprudence.
- Standing — applicant must usually be an "aggrieved person" under Article 199; rule diluted in PIL.
- Alternative remedy rule — High Court will not entertain writ where statutory remedy exists.
For a top CSS answer on judicial review, run through: (i) constitutional text (Arts. 8, 184, 199); (ii) Marbury v. Madison (1803) as comparative anchor; (iii) doctrinal milestones (Tamizuddin → Asma Jilani → Sindh HC Bar Association); (iv) PIL via Benazir Bhutto and Shehla Zia; (v) basic structure debate (Achakzai → DBA Rawalpindi). Conclude with a critical view on overreach.
Recent developments
The 26th Amendment 2024 restructured the Judicial Commission of Pakistan under Article 175A and capped the term of the Chief Justice, redistributing some constitutional powers between a new "Constitutional Bench" and the rest of the Supreme Court. Critics argue this dilutes judicial independence, while proponents see it as curbing perceived activism. The amendment is itself subject to judicial review under the basic-structure jurisprudence affirmed in DBA Rawalpindi.