LAHORE: As the heated debate on the role of courts and legislative houses peaks in Pakistan with MQM Chief Altaf Hussain also jumping in, the incumbent government and its allies are adamant on politicising the issue.

The Supreme Court of Pakistan is also not deviating an inch from its stance, as it cannot, that through the power of judicial review, it enjoyed the right to strike down any law that it deemed to be ultra vires of the Constitution.

Though Pakistan may not be very far away from settling the issue as to who will interpret the Constitution—-the court or the parliament—-the intense and eventful tug-of-war for supremacy between the two branches of state has once again reached its pinnacle.

Why a settled issue has gained such importance and controversy is beyond comprehension as it is very clearly written that Parliament has the powers to legislate and amend the Constitution but the Supreme Court has the power to judge whether any change is not against the very basic structure of the Constitution.

These areas are clearly defined but since there is a lot of politics involved in challenging the courts, the issue has been deliberately turned into a football between the two prime institutions of the country.

However, ripe is the time to revisit a few research reports penned down by this correspondent on this particular subject during the last couple of years.These oft-quoted and cited research reports had discussed at length how courts in many Western and Asian countries were enjoying unchallengeable supremacy over their respective legislative houses, courtesy their power of judicial review.

With reference to the interpretation of the Constitution, the American Judicial Review system has been a guiding light for jurists and law experts all over the planet for more than two centuries now and there is no doubt that courtesy their power of Judicial Review, courts in countries like the United States, India, Germany and United Kingdom etc factually enjoy absolute authority over their respective legislative houses in this regard today.

As far as the judicial review powers are concerned, they have of course been derived everywhere on Earth from a common source——the American jurisprudence.The US introduced the position of a President to the world towards the end of 18th Century, has now left it up to its apex court to constitutionally determine the validity and application of the laws passed by its legislators.

Apex courts all over the world have been striking down laws made by their respective legislative houses.

A study of the 1787 US Constitution, the contents of which have been borrowed by dozens of nations during the last two centuries to frame their own constitutions, shows that the Supreme Court in the land of Columbus enjoys both original and appellate jurisdiction on any law framed by the legislators sitting in the Congress and Senate.

(Reference: Article III (Section 2) of the 1787 US Constitution)

Article III of the US Constitution states: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

As is the case in Pakistan, the US Constitution permits the US Congress to make all laws for the government and its officers, besides being required to confirm federal judicial appointments and define by law the jurisdiction of the judicial branch in cases not specified by the Constitution.

While the judicial power of the US apex court extends to all cases, it even enjoys the authority to decide how the Congress may actually mean or want the application of law otherwise made by it.

There is a long list of parliamentary decisions that US Supreme Court had struck down over the decades and it goes without saying that the concepts of both Judicial Review and Judicial Restraint have been effectively exercised by American judges since 1803, the year when the legendary Chief Justice John Marshall had started establishing the pre-eminence of court over both Executive and Legislative branches.

Very recently in June 2012, the 223-year old United States Supreme Court had ruled against a federal law that had made lying about receiving decorations for military service a crime.

In this case, the United States Apex Court had ruled in favour of a former local elected official in California, who had falsely claimed he was a decorated war veteran.

The US Supreme Court, which consists of a chief justice and eight associate justices nominated by the President and confirmed by the Senate for life-time tenures, gave a majority verdict in favour of the Californian official, who had otherwise pleaded guilty to violating a law that was adopted with the United States at war in Afghanistan and Iraq and was aimed at penalising people making phony claims of heroism in battle.

The court, in a judgment written by Justice Anthony Kennedy, ordered that the guilty Californian official Xavier Alvarez’s conviction be thrown out.(Reference: Associated Press story appearing in UK newspaper “The Guardian on June 28, 2012)

Going through the American judicial history, one finds that it was not an easy journey for a young developing nation where the first US President George Washington had laid the foundation stone of invoking Executive Privilege for the first time in 1796.

Washington’s successors like Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, Eisenhower, Harry Truman, Richard Nixon, Bill Clinton and George Bush Junior etc had all followed suit by confronting the Chief Justices of their time and making use of the sword of Executive Privilege.

There are numerous precedents in American legal history where the country’s Supreme Court had never hesitated in taking a stern action, whenever it had found the parliament violating any provision of the country’s constitution.

It had promptly declared all such laws as invalid or ultra vires of the Constitution, though it had to confront many American presidents and take them head-on!

A study of the American Judicial Review system shows that for the last 209 years (since 1803), the US Supreme Court continues to constitutionally determine the validity and application of the laws passed by its country’s legislators.

The US Supreme Court’s decision in 1803 to declare an act of Congress unconstitutional first raised many an eye-brow in the oft-quoted Marbury versus Madison case during President Thomas Jefferson’s reign.

(Reference: This correspondent’s January 22, 2012 report on this subject under review)

In the Marbury versus Madison case, Chief Justice John Marshall had struck down the unconstitutional acts of the US legislators, showing it to the world that the judges enjoyed exclusive judicial review powers to determine which laws the American Congress actually intended to apply to any given case.

To the sheer dismay of President Jefferson, CJ Marshall had termed the act of William Marbury, one of the 58 infamous ‘Midnight Judges’ appointed by former President John Adams towards the end of his tenure for his support, as void.

But this case was not the end of CJ Marshall’s efforts to rewrite the American jurisprudence.

The US Supreme Court’s first decision to declare an Executive Branch action as unconstitutional was announced in the Flying Fish case of 1804. The Flying Fish Case had involved an order issued by President John Adams in 1799 during America’s war with France, whereby the Navy was authorized to seize ships bound for French ports.

After a Navy Captain in December 1799 seized a Danish vessel called “Flying Fish,” pursuant to Adams’s order, the owners of the ship sued the captain for trespass in US Maritime court.

On appeal, Chief Justice Marshall rejected the captain’s argument that he could not be sued because he was just following presidential orders.

The Court noted that commanders “act at their own peril” when they obey invalid orders, ruling that the US president’s order was outside his powers. Within a couple of years, CJ John Marshall’s continued endeavours for judicial supremacy had infuriated President Jefferson.

The Supreme Court had also gone on to exonerate former Vice President Aaron Burr in a treason case framed against him at the behest of the Jefferson regime.

After passing these orders in quick succession, Chief Justice Marshall thus had to encounter an extremely harsh criticism from President Jefferson and the incumbent Congress legislators, compelling the most respected top judge in history to observe,” If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. Hence, the judges would declare it void. To what quarter will you look for protection from an infringement on the Constitution?”

The US Supreme Court then never looked back after issuing these two afore-mentioned historic verdicts.

In Gibbons versus Ogden case of 1824, the apex court went on to overturn a monopoly granted by the New York state to certain steamships operating between New York and New Jersey. This verdict ended many state-granted monopolies.

President Andrew Jackson was also infuriated when his policy regarding American Indians, which involved the ethnic cleansing of several Indian tribes called the Cherokees, was termed unconstitutional by CJ Marshall.

In the Sheldon versus Sill Case (1850), also surfacing during President Jackson’s era, Chief Justice Roger Taney took the Congress head on by holding that the legislators could not limit the subjects the Supreme Court might hear.

In its endeavours to establish judicial supremacy, the US Supreme Court even had to face President Roosevelt’s infamous “Court-Packing Plan” in 1937, after it had again struck down numerous parliamentary laws made at the behest of this well-known American head of state.

In the Watergate scam, the Court ruled against President Nixon, despite his claims that an “Executive Privilege” shielded him from all legislative oversight.

In the United States versus Lopez case of 1995, Rehnquist’s Court struck down a law on grounds that Congress had acted beyond its powers.

In the Clinton v Jones sexual harassment case (1997), the court rejected President Clinton’s argument that the Constitution protected him from suits dating back to his pre- presidency period.

In the United States versus Morrison case of 2000, CJ Rehnquist had struck down the civil damages portion of the Violence against Women Act of 1994, holding that the Congress lacked authority to enact a law that created a federal remedy for gender-motivated violence.

In both Kimel versus Florida Board of Regents case of 2000 and Board of Trustees of the University of Alabama versus Garrett case of 2001, the Court observed that Congress had exceeded its powers to enforce the Equal Protection Clause.

In India too, the Supreme Court has special advisory jurisdiction in matters, which may specifically be referred to it by the President of India under Article 143 of the Constitution. The Indian judiciary has the power to adjudicate upon the validity of all the laws and the court has power to declare any law invalid, if it deems it to be unconstitutional.

Like the US, India too has seen a few eventful government-judiciary tiffs.

Despite the fact that the Indian Supreme Court enjoys appellate and advisory jurisdiction, questions have been raised since 1951 about the scope of the constitutional amending process contained in Article 368 of the Indian Constitution.

The first government-judiciary conflict in India had arisen after the court had started invalidating the Land Reform Acts, to the annoyance of the Nehru regime.

After the Court had overturned laws redistributing land from landlords on grounds that the laws violated the land owners’ rights, the Indian Parliament had gone on to pass the First Amendment in 1951, followed by the Fourth Amendment in 1955 and 17th in 1964, to protect its authority to implement land redistribution.

The Supreme Court countered these amendments in 1967 in the Golaknath versus State of Punjab case when it ruled that the Parliament did not have the power to abrogate fundamental rights, including the provisions on private property.

To counteract against the landmark Golaknath case decision, former Premier Indira Gandhi had then made a series of attempts through various constitutional amendments to establish the supremacy of Parliament over judiciary. The Indian Supreme Court again declared that the Parliament could not use its amending powers to damage, emasculate, destroy, abrogate or alter the ‘basic structure’ of the Constitution.

A row in this context had again surfaced between Indian judges and lawmakers in 1985 on the Anti-Defection Act, when the Parliament took the powers to decide the issue of defection of political parties.

Tension again mounted in 2006 on issues ranging from a court ban on commercial premises in unauthorized areas of Delhi to the refusal of Lok Sabha’s Speaker to expel corrupt legislators.

The Indian apex court’s verdicts to declare the recommendation of President’s rule in Bihar as unconstitutional and to bring the decisions of the Speakers of the Assemblies under judicial review had also infuriated the parliamentarians.

The Indian Supreme Court’s judgment in the Kesavananda Bharati case of 1973 then went on to establish the “Doctrine of Basic Structure.”

According to this verdict, the Indian Constitution has certain basic features which hold a transcendental position and which cannot be altered either by the parliament or Supreme Court.

The judgment stated that although these amendments were constitutional, the court still reserved for itself the discretion to reject any changes made by the Parliament, through which the Constitution’s basic structure was altered.

In 1970, the Indian Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by the Parliament, besides rejecting the presidential order of September 1970, which abolished the titles, privileges and privy purses of the former rulers of India’s old princely states.

In reaction to Supreme Court decisions, the Parliament empowered itself to amend any provision of the Constitution, including the Fundamental Rights.

In Indira Gandhi versus Raj Narayan case of 1975, the Supreme Court applied the theory of basic structure and observed that the amending power of the parliament only destroyed the ‘basic feature’ of the Constitution. But despite remaining on the back foot during the Indian Emergency period of 1975-77, in which Indira Gandhi had even tried to depress the judiciary by appointing a junior judge as the chief justice, the Indian arbiters did not lose heart and continued to exercise their powers of Judicial Review.

In 1975, the Indian Parliament passed the 39th alteration, which limited judicial review for the prime minister’s election and empowered a body to review this election, besides coming up with the 42nd modification that prevented the court from reviewing any Constitutional amendment.

The Indian judiciary, however, remained ineffectual during the 1975-77 Emergency.

In United Kingdom’s case, a fissure between its national tendency of legislative supremacy and the European Union’s legal system is pretty visible because EU’s legal system empowers the Court of Justice of the European Union with judicial review.

But during the last 400 years, England has seen some ‘unsung court heroes’ who had dared to challenge the Royalty.

In 1616, a top judge Sir Edward Coke was dismissed after he had defied King James I.

Judicial review is not a prohibited phenomenon in the UK and the High Court here enjoys supervisory jurisdiction over public authorities and tribunals. However, the British Supreme Court remains the final authority and court of last resort in all matters under the English law.

To cite an example of judicial dominance in UK, when the British government had proposed to introduce a new Asylum and Immigration Act by excluding the judicial review power of the courts, members of the judiciary had protested to the extent of saying that they would not accept any such exclusion. Consequently, the government of UK had to withdraw its proposal. A study of the UK law shows that remedies such as a Quashing order; a Prohibiting order, a Mandatory order; Declaration, Injunction and Damages etc are available in proceedings for judicial review, which explicitly means that this doctrine of judicial oversight is being acknowledged in this part of the world too.

In Germany, the Federal Constitutional Court is empowered with reviewing acts of the Federal Republic Congress (the Bundestag) for their constitutionality.

The Federal Constitutional Court of Germany can even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution.

This even goes beyond the powers of the US Supreme Court and the Indian Supreme Court in many ways.

The German Supreme Court had twice struck down the legislation legalizing abortion in 1975, besides having banned the Socialist Reich Party (a neo-Nazi party) and the Communist Party from functioning during the 1950s.

The list of such precedents is unending, but it remains to be seen as to how long do the Pakistani politicians keep on denying the fact that the interpretation of Constitution should solely be left to the courts only.

The issue would be settled quickly if politics was taken out of it and political leaders who are scared of accountability by the courts stop using these diversionary tactics to engage the courts in frivolous matters, distracting them from their main job of providing justice to the people and catching the thieves of national wealth, in all segments of the society.