Principles of Judicial Review and Political Questions; Introduction: by Mr. Muhammad Bashir, Former Judge National Accountability Bureau Court Islamabad

Islamabad 13-09-2024: The judicial review is a key tool in maintaining constitutional governance; Mr. Muhammad Bashir, Former Judge National Accountability Bureau Court Islamabad has made dedicated effort to consolidate the research work under the heading “Principles of Judicial Review and Political Questions”. We are publishing this valuable research work in Pioneer Monthly Law Journal of Islamabad “Islamabad Law Reports Islamabad” and the research work is also being published on this website i.e. “Live Law Pk” for the persons who are keenly interested to understand the domain of Constitutional Courts in form of Judicial Review of the Executive Orders.

In the U.S., judicial review was established through “Marbury v. Madison”, while in Pakistan, it is explicitly granted by Articles 184(3) and 199 of the Constitution. The Courts ensure the Executive and Legislature to adhere to the Constitution and protect Fundamental Rights of the citizens. Criticisms of judicial review, including claims of it being undemocratic, are also addressed by Mr. Muhammad Bashir in his research work. The Political Question Doctrine limits judicial review in certain areas, except where fundamental rights are at stake. The abstract of First Chapter under the Heading of Introduction is given as follows:-

“The chapter introduction delves into the concept of checks and balances as a central feature in constitutional frameworks, emphasizing the division of power among the executive, legislative, and judicial branches. The U.S. Constitution's framers, particularly Alexander Hamilton, recognized the need for internal and external controls on government due to the flawed nature of human beings. Judicial review is one such control, serving as a vital tool to maintain the constitutionality of legislative and executive actions. The U.S. judicial review, while not explicitly provided for in the Constitution, was established through Chief Justice Marshall’s interpretation in Marbury v. Madison. The Constitution of Pakistan, in contrast, expressly grants the judiciary the power of judicial review under Articles 184(3) and 199.

Judicial review in Pakistan is designed to ensure adherence to the Constitution and protect fundamental rights, making it a crucial supervisory mechanism. The courts, acting as guardians of the Constitution, balance the powers of various government branches, ensuring that neither the executive nor the legislature oversteps their authority.

The chapter also highlights various critiques of judicial review, including claims of it being undemocratic due to the unelected nature of judges, and accusations that it encroaches on the powers of the legislature. However, the courts maintain their role as interpreters of the Constitution, ensuring the rule of law and protecting citizens’ liberties.

Finally, the chapter introduces the idea of non-justiciability and the political question doctrine, which restricts judicial review in areas that fall under the purview of the executive or legislative branches, particularly in matters of political discretion like foreign policy. However, exceptions to this doctrine arise when fundamental rights are implicated, reinforcing the judiciary’s role in upholding the Constitution.

In summary, the chapter discusses the essential role of judicial review in maintaining the balance of powers, ensuring constitutional supremacy, and protecting fundamental rights in both the U.S. and Pakistan. Despite criticisms, judicial review remains a cornerstone of constitutional governance, serving as a check on governmental excesses.”

For the interest of legal researchers, the full chapter under the heading of Introduction of “Principles of Judicial Review and Political Questions” is being reproduced as under:-

Introduction:

1.         Almost all written constitutions cater for external as well as internal checks on government. Primary check on the government is the public opinion or the will of the people. The framers of the US Constitution particularly Alexander Hamilton thought that the primary check on the government is not sufficient but additional measures are necessarily required to control the government ^[[1]]. Therefore, three separate and distinct organs were created and a system of reciprocal checks and balances was designed for checking and controlling the three organs by themselves internally. The rationale behind the requirement of checks and balances in the government is in fact a result of distrust in the human nature. The human beings are fallen / frail. As per John Adams (second President of the USA), ‘Power naturally grows as human passions are insatiable’ ^[[2]]. Two important quotes are noted by A K Brohi in his book ^[[3]]. Lord Atkin Said, “all power corrupts” and “absolute power tends to corrupt absolutely”. Woodrow Wilson also used to say “History of liberty is the history of limitations on the power of the Government.” 

Separation of powers is implicit in the Constitution of Islamic Republic of Pakistan (hereinafter ‘the Constitution’). The powers of the State are divided among three distinct organs created by the Constitution, the legislature, the Executive and the Judiciary. The legislature is directly politically accountable to electorates after a specified period. A free election does act as check on the Parliament. The other organ, the Executive is politically responsible to the legislature. Both the organs are legally accountable to the Judiciary. The Constitution itself caters for enforceable limits on their powers. Powers vested in and exercisable by the judiciary are granted by the people to protect them from excesses of the Executive, and to maintain the supremacy of the Constitution. The Judiciary allows its coordinate branches not to run amok or overstep the spheres of their authorities, powers, roles and functions as specified in the Constitution. The power of the judiciary to examine / review legislative and executive actions with purpose to determine legality and adherence to the Constitution and to make decisions to countermand unconstitutional or unlawful actions of both the organs is generally characterized as power of the judicial review. Judicial review acts as a supervisory control over the government. 

2.         The power of the judicial review is not available in any express provisions of the US Constitution. In Marbury v. Madison ^[[4]], Chief Justice Marshall deduced that power to declare the ordinary legislation as unconstitutional from the very nature of the duty / obligation assigned to judicial department, which is to resolve the controversy or to decide the cases between the parties. The court while resolving the controversy, has to interpret the Constitution and the law out of necessity. Judicial review as such is regarded as incidental to the judicial power of the Court. Chief Justice wrote the opinion of Court in the above cited case while holding that “it is emphatically the province and duty of the judicial department to say what the law is”. It was further observed that the US Constitution being supreme law must prevail in the resolution of conflict between the Constitution and the other law of the Country. 

3.         However, the Supreme Court of Pakistan and a High Court are expressly bestowed with the power of judicial review vide Articles 184(3) and 199 of the Constitution of Pakistan respectively. The doctrine of the judicial review with reference to the Constitution of Pakistan can be described as below. 

The Reviewing Court is entitled to examine and make decisions regarding the issues of (i) constitutional validity of the legislative actions, and (ii) constitutional validity and lawfulness of action, inaction or a decision of a person or body in relation to the exercise of a public function ^[[5]]. Judicial review as defined above also provides abundant scope for the enforcement of Fundamental Rights. The enforcement of the fundamental rights is one of public functions. The superior Courts can issue appropriate directions in that regard to public functionaries. Certain Fundamental Rights by their nature, may be impinged by private person(s) such as Fundamental Rights which are incorporated in Article 11, which pertains to slavery, forced labor, etc., Article 14, which pertains to inviolability of dignity of man, Article 15 which relates to freedom of movement, etc., Article 23, that concerns with right to property. Therefore, the Superior Courts with reference to the enforcement of such rights may issue appropriate directions to private person(s) while exercising the power of judicial review ^[[6]]. The judicial review is not confined to legislative or executive actions. The words ‘a person or body’ are used in the description of Constitutional model of judicial review as noted above. That is why the decisions of the Courts below are also subject to judicial review on the grounds of illegality, jurisdictional defect or misreading and non-reading of evidence ^[[7]]. The decisions of military courts were set aside by the High Court on the ground of misreading and non-reading of evidence ^[[8]]. 

The word “person” is defined in the Constitution, it includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal. To determine whether a person is performing public function or not, the Court examine, (a) Nature of the function, (b) Control of the organization / company and (c) provision of funds. If sovereign or public power is being exercised, or its control in substantial manner is in the hands of the government, or fund is provided by the State, the function of company, organization or a person will be said public function ^[[9]]. The Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan are excluded and are not amenable to the Judicial review (See Article 199(5) of the Constitution).

4.         Judicial review is premised on the supremacy of the Constitution, the Rule of Law, the enforcement of the Fundamental Rights, interpretation and application of the Constitution and the law. It is a great instrument in the hands of the Judiciary to protect liberty of the citizens. “The Courts have no more important function than protecting citizens from the abuses & excesses of the Executive” (as once said by Lord Neuberger in his public lecture). Judicial review ensures checks and balances, stability, and accountability in governance. It provides justice to the people and promotes equity. It is respite for the citizens from the sense of powerlessness in the face of authority. 

5.         The court strengthens the rule of law when it upholds the supremacy of the Constitution ^[[10]]. Judiciary is equal coordinate branch of the government, which is intended to interpret, construe and apply the law. It is the duty and province of the judiciary to say what the law is. Therefore, interpretation of the Constitution is the peculiar power of the court ^[[11]]. In UK, error of law is taken as beyond the scope of powers of any public authority and subject to review with or without ouster clause ^[[12]]. The legislation can supplement but cannot supplant to the Constitution.

Therefore, any ordinary law cannot take away the power of judicial review albeit an ouster clause is inserted in a statute giving finality to decision of authority. The Court has every authority to see as to whether the impugned order is within the four corners of law or not. There is a presumption against the ouster of the jurisdiction of the Superior Courts. The law which has the effect of denying access to justice to the people is narrowly construed. The power of judicial review is bestowed by the will of the people (the Constitution) for a relief from oppression, and a redressal for the infringement of their rights. However, where the ouster clause is clear and unequivocal, admitting of no other interpretation, the Courts un-hesitantly give effect to it ^[[13]]. The Superior Courts are judged of their own jurisdiction and they jealously guard their jurisdiction. They do not, with ease, abdicate or surrender their jurisdiction. A decision contrary to essence of justice is considered as no decision within the meaning of law ^[[14]]. The Constitution itself creates balance among the different branches of the government. Containment of all authorities within their respective jurisdictions and powers is included in the duties assigned to the Courts ^[[15]]. Mr. Justice Spigelman Chief Justice of New Wales describes the Judges as “the boundary rider maintaining integrity of the fences that divide legal constraints from the sphere of freedom of action” ^[[16]]. Wooden Wilson said, “Our Courts are the balance wheel of our whole Constitutional system” (quoted in Evans v. Gore, 1920 253 US 245). As per Hamilton (as noted in Federalist No. 78) “the judiciary also serves as the bulwarks of a limited Constitution.”. The interpretation of the constitution is the prerogative and the duty of the superior courts. Six modalities of interpretation noted in the Treatise ‘Constitutional Interpretation by Bobbitt Philip’ are given tacit approval in Al-Jihad Trust case ^[[17]], which are noted below to show how the coherence between different provisions and an equilibrium of powers is tried to i.e. achieved through interpretation. 

1).        Historical argument: It requires discovery of original intention of the framers of the Constitution. 

2).        Textual argument: The court determines whether the interpretation of the particular text of the Constitution holds good for the rest of the Constitution. 

3).        Structural argument: applies when the Constitution has different structural schemes within it. In such a case, the interpretation adopted should not mutilate or destroy the structural scheme of the Constitution. 

4).        Doctrinal argument: notices the existing interpretation by the Court and jurist of the particular or similar constitutional provisions. 

5).        Ethical (ideological) argument: finds its roots in the ethos of nations. 

6).        Prudential argument: proceeds on that interpretation which creates balance between various provisions of the Constitution. 

6.         It is now well settled that a Constitution is a living organism. The original words of a Constitution assume different meanings. And the concepts contemplated therein may undergo metamorphosis with passage of time in changed circumstances and growing requirements. 

7.         Justiciability: The scopes of jurisdiction of the Court is no more than what is vested in it by the Constitution or by the law or under the law in them. Justiciability of the subject matter therefore, is a pre-requisite of the judicial review. Justiciability refers to suitability or appropriateness of the subject matter. To determine whether the subject matter is justiciable or not, there are two tests:- 

(i) Primary test of Justiciability: This test circulates around the subject matter. When subject matter itself is found as not falling within the purview of the Court, the court refuses to make any decision on such matter. 

(ii) Secondary test of Justiciability: When a subject matter is found justiciable under the first test then, grounds of review as set forth in the petition by a party are taken into account. This test is confined to grounds of review raised in the petition. 

Non-Justiciability refers to a subject matter which is inappropriate for judicial consideration. This doctrine is founded on two conceptions:- 

(i) First conception of Non-Justiciability: the public power exclusively assigned to the legislature or the executive branch of government in the Constitution is not judicially reviewable. It is for the other relevant branch of the government to decide how to exercise that power. It is a proscribed area or no go area for the judiciary. Role, power and jurisdiction of each organ of the State are specified in the Constitution. Each organ is supreme in its own sphere of role, power, and jurisdiction. No power can be claimed by any functionary which is not found within four corners of the Constitution. No organs can transgress the limits of its powers specified in the Constitution ^[[18]]. It is included in the duty of the judiciary to keep all instrumentalities within their spheres of powers ^[[19]]. The Constitution governs the government and not the men.

(ii) Second conception of Non-Justiciability: The Court might desire that the matter is of such a nature that it is suitable the matter in issue should be first reviewed and resolved by other branch of the government. 

8.         The doctrine of political question is the doctrine of Non-Justiciability. The Court decides constitutional / legal questions and abstains from deciding the political questions because, the resolution of those questions lies in the political process. This doctrine holds that certain matters are really political in nature and can be best resolved by other branch of the government other than the judiciary ^[[20]] for example the matters of foreign policy, declaration of war, or signing of a peace pact, etc. are political questions. 

Doctrine of political question is actually functionality of principle of separation of powers. This principle requires that the Court should not overstretch its limits and let the roles / functions and independence of other two organs intact. That is why, the Courts exercise restraint, and not enter into the domains of the Legislature or the Executive. The Courts while determining justiciability or otherwise, two principles are applied, one is the rule of law and second is the doctrine of separation of powers. The Courts first specifies the spheres of powers granted by the Constitution and the law then, comes the doctrine of separation of powers which is implemented. In Dossani Travels Pvt Ltd ^[[21]], it was held and observed, 

“Implementation of rule of law is the primary function of the judiciary. This role is multidimensional. The most challenging facet of this role is to keep various institution and the judiciary itself within the limit of their respective powers laid down in the Constitution and the law.” 

The judiciary is an ultimate interpreter of the Constitution & the law. The Courts identify the scopes and limits of the Executive and the Legislature through interpretation of the Constitution & the law. Once the authority of the Legislature (or the Executive) has been delineated, the questions how much such authority is to be exercised, and what policies are to be framed and enacted through the legislation are political questions. It is prerogative of the Legislature how to exercise its powers. The Court exercise restraint in deciding all matters particularly falling within the exclusive domain of the Legislature or the Executive. The amendment competently made in the Constitution by the Parliament is an example of a political question. The amendment cannot be struck down by the Court, even if it violates the fundamental rights. It is also clarified by the Supreme Court that oath of the office to preserve, protect and defend the Constitution, which would also include amendment competently made in the Constitution ^[[22]]. A Constitutional amendment posed a political question but rectifiable through the normal mechanism of parliamentary democracy and free election. The Court has no authority to set it naught on substantive grounds ^[[23]]. However, amendment cannot be made in disregard of salient feature of the Constitution. (This matter will be discussed and other place)    

The second aspect of non-justiciability is elaborated by Justice Rustam S. Sidhwa in Khawaja Muhammad Sharif’s case ^[[24]] that when the impugned action of the President under Article 234 of the Constitution was subject to the ratification of the Parliament. The decision of such question was left for the decision of the Parliament, or where election had been announced, to the will of the people. 

Exception to the Political Question Doctrine: Where a political question is tied up with the constitutional rights or obligations, such questions is also subject to judicial review. While deciding a legal question having political ramification/ implication and the court does not treat such legal question a political question and cannot surrender / abdicate its power. 

9.         Non-justiciability is absolute and incurable. Other principles of standing, ripeness, mootness, abstractness, and abstention depends on factual circumstances of the cases and curable by change of circumstances. 

10.       Mr. Tassaduq Hussain Jillani C. J (as then his lordship was) has highlighted in his augural address, the role of the Judiciary and causes of overburdening of the Courts at International Judicial Conference 2014 ^[[25]] as:-

i)    Non-performance of duties on part of the Executive. 

ii)  Political deadlocks as a result of which there is judicialization of political issues. 

iii)  Intrusion of one organ in the sphere of power of other organ.

iv)  Tendency of the legislature to bring in legislation, which may violate fundamental rights as enshrined in the Constitution. 

v)   Expansion of multifarious functions in the Government but malfunctioning on the part of the government. 

vi)  Gaps exist between the law and socio-economic demands. The Apex Court has to fill it while exercising powers conferred under Articles 184(3) and 187 of the Constitution, and 

vii)    Existence of perception of the role of the Courts in advancement of Constitutional goals and

viii)   the people depose more confidence in the Courts than other two organs of the State. 

11.       Judicial review is criticized by some of the judges, politicians, intellectual and legal scholars on different grounds as noted below: 

i).   Judicial Review is undemocratic, the legislature is more legitimate / participatory than Courts. 

ii).  Judges are unelected and unaccountable. 

iii).   Judicial review is counter-majoritarian force, legislating from the bench. It is judicial oligarchy / judicial adventurism. 

iv).    The Courts go beyond the ambit of interpretation and re-write / amend the Constitution, which is interpolation and not interpretation.

v).  The Courts enter into the spheres of other branches (overreach of the Court). The courts inject themselves into the clash of political forces in political settlement. It causes distrust and loss of public confidence in the Court while public confidence is its moral sanction.

vi).    Personal opinions of the judges metamorphose into legal principles and constitutional values. 

vii).  The Courts are constantly enlarging the boundaries of the fundamental rights through interpretation, and assuming the right to ask public authorities in case of their failure to perform their Constitutional duties.

viii). Policy making, legislation and executive actions are slipping increasingly into the hands of the judiciary.

ix). Robert F. Nagel in his book ^[[26]] objected to the judicial review, particularly on the aspects. a) that constitutional interpretations which have important influence over a vast range of policy. The reliance on such interpretations has weakened social and political support for constitutional value. 

b)         The constitutional meaning must grow out of the fundamental value and experiences of the people, not ingenuity of lawyers. 

c)         Constant application of artificial logic of legal doctrine diminishes public support for basic values. The main enemy of the Constitutional order is the routinization of judicial powers, intervention in political affairs. 

d)         The author also referred extracts from certain books as “The Supreme Court and the Idea of Progress” by Bickel, “The time Chart of the Justices” by Hart. Alexander Bickel wrote that ‘enforcement of constitutional principle by the Courts may meet a need for continuing and harmony in our values.’ Hennery Hart sought justification for judicial review in the need for ‘articulating and developing impersonal and durable principles.’ 

e)         Constitutional principles should emerge from practice when judicial interpretations do not supply specific meaning but merely ratify the validity of past practice. 

12.       This thesis is divided into seven chapters and the discussion therein will clear the blurred situation which seems to have arisen by the criticism cited above. 

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