Friday July 01, 2022

Legislation and judicial review

December 23, 2021

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.

Democracy in Pakistan has been interrupted by successive military interventions on four occasions. All three constitutions – 1956, 1962 and 1973 – promised parliamentary democracy.

The preambles of the constitutions commonly ordained that the authority of the state shall be exercised by the chosen representatives. Thus, the grund norm of the constitution is that the real guardians of liberties and rights of the people are their chosen representatives. The powers to legislate and execute laws are vested in the people’s representatives.

It is argued that judicial review of legislation on other-than-permitted grounds eventually weakens the democratic process which is already fractured by military interventions and discrediting of politics while other institutions are unaccountable and immune despite arrogating decision-making powers affecting the fate and future of the state.

Courts must acknowledge the primacy of parliament in the constitutional scheme and should only declare a law unconstitutional if a clear case is made out by a legally wronged person and the impugned legislation shocks the conscience of the constitutional fundamental rights or is enacted without legislative competence.

It is also argued that the practice of summoning prime ministers under the sword of Damocles – contempt powers – or pursuant to the power of judicial review, a more common and recent phenomenon, greatly undermines democracy and the constitution. Prime ministers or presidents have never been summoned by Supreme Courts in matters relating to the performance of their functions in the history of common law jurisdiction. If the conduct of a judge cannot be discussed (and summoned) by parliament (Article 68) then a prime minister too, being a representative of the people, cannot be summoned by courts in the performance of his/her functions under Article 248.

Being a federal polity, under the constitution the legislative powers of the state have been distributed between the provinces and the federation exercised by the provincial assemblies and parliament. Parliament and the provincial assemblies exercise legislative powers in respect of matters assigned to them by the constitution. Under Article 142(a), parliament is empowered to legislate in respect of matters enumerated in the Federal Legislative List given in the Fourth Schedule to the constitution.

The constitution contained a concurrent legislative list, but it was done away with by the 18th Amendment in 2010, leaving a mess behind to be fought out in courts. Now only three matters enumerated in Article 142(b) give concurrent legislative powers to parliament and the provincial assemblies. Other than the matters enumerated in the Federal Legislative List or in Article 142 (b), provincial assemblies have the power to legislate including the power of taxation. Even residuary legislative powers are now vested in the provincial assemblies. An area of legislation, which was not historically in the provincial domain under the old constitutions or the Government of India Act, 1935, now falls within the legislative and consequently executive domain of the provinces.

With the introduction of written constitutions, in common law countries, the doctrine of ultra vires was evolved by the courts. In cases coming from Canada under the British North America Act, 1867, and from other colonies with written charters, the Judicial Committee of the Privy Council laid down several fundamental and foundational principles in relation to legislative powers and federal principles.

Several doctrines were developed to determine the powers of respective legislatures which included doctrines of pith and substance and occupied field and severability etc. Since the British Empire was in favour of a strong central government, there was a tilt in favour of federal governments. The doctrine of ultra vires (an extension from rules applicable to delegated legislation), also called the doctrine of legislative competence, provided the sole basis of challenging legislation prior to the bills of rights. Jurisprudence of the 19th and early 20th century revolves around these doctrines. Moreover, since the right of legislation vested in the provinces or the federation, therefore, the locus standi to challenge legislation was vested in the respective governments through attorneys-general.

With the incorporation of the bills of rights in constitutions, particularly after certain rights were added to the US constitution and more particularly after the Universal Declaration of Human Rights, an additional limit was recognised on legislative powers. Unlike the doctrine of ultra vires, a law inconsistent with fundamental rights was void. The constitution confers jurisdiction to superior courts (high courts and the Supreme Court) and the word ‘person’ used in Article 199 thereof has been extended to parliament by putting a judicial gloss on the expression ‘body politic’; therefore, the courts are empowered to declare a law unconstitutional. Had the intention of the constitution-makers been to include parliament as defined in Article 51 in the definition of ‘person’ as used in Article 199 then it would have said so.

There was a reason for this omission. All three branches of government are coordinate branches in so far as the constitution is concerned. None is subservient to the other. Over the years, however, it has regrettably been presumed that the judiciary is superior to other branches. That has no textual support in the constitution.

The formulation of Article 8 (1) taken in its true context is: a law inconsistent with a fundamental right of a citizen/person is void. When the state enforces that law, the court will simply treat it as void – unenforceable. However, by importing jurisprudence from other countries to interpret the constitution, particularly when no two constitutions in the world are identical, courts make fatal mistakes in the interpretation of the constitution.

Jurisprudence of the last two decades has expanded the scope of judicial review of legislation beyond constitutionally permitted grounds. The doctrine of ultra vires of legislative competence is well settled. It is textually supported under Articles 142 & 143 of the constitution. Similarly, judicial review of legislation on the ground(s) of inconsistency with fundamental rights may be supported by stretching the text. But more recently, courts have expanded the scope of judicial review of legislation to other provisions of the constitution and even to procedural violations.

The Hisba Bill (2005) was struck down when it was not even enacted as law. In Baz Muhammad Kakar’s case, the Contempt of Court Act was declared void being violative of Article 204 of the constitution. In Durrani’s Ceramics (2014), despite there being a double constitutional bar, a tax legislation was declared void as being inconsistent with Article 73 of the constitution. In re contempt matter (2013), the Sindh Civil Servants (Amendment) Act, 2011 was declared void and non-est (and upheld in the Ali Azhar Baloch Case) on the grounds that it was inconsistent with Articles 4 (not a fundamental right), 9 and 25 and 240. It must be noted that the theory of non-est by no means is universally accepted and applied.

The constitution is based on a trichotomy of powers with the sole purpose of placing peoples’ rights and liberties beyond the reach of any particular branch of government. It also recognises checks on those powers and limits upon jurisdiction (Article 175 (2). Expansion of the grounds of judicial review of legislation beyond Articles 8 and 142 of the constitution is like the equity jurisdiction of 19th century in England that used to grow with the foot of the chancellor – which undermines parliament and creates uncertainty.