Quote:
Originally Posted by rose_pak
It seems that the judiciary is more powerful through judicial review. However, there must be a check on judicial review.
Even the article 175 which deals with the appointment of judges falls victim of judicial review. During adhoc judges case the SC advised the parliamentary committee to provide with the reasons to the judicial commission for negating any appointment proposed by latter. The gov't kept silence in 19th amendment on this. As of now the matter stands like this: Under 19th amendment the PC does not need to provide reasons for negating the appointment of any judge proposed by the JC, however under adhoc judges case, it ought to be, as the adhoc judges case has become a case law.
So, the matters are not so easy here. there has to be check and balance and the limits has to be withdrawn.
Secondly, even if contempt of court ordinance does not have any legal backing (as PPP says), the court is still comptent enough to convict the accused under article 204 of the constitution. (article 204 also authorizes the courts to proceed against contempt of court). However, I believe the SC cannot do mistake by referring to 2003 ordinance, it must have a legal backing. (But i have to research on this)
Thirdly, the ruling against speaker national assembly is not a Judicial Review. Any action by the superior judiciary on a parliamentary act is called judicial review. the speaker's ruling (under article 63 (2)) is not "internal proceedings" of the parliament. So, it is not a judicial review of a parliamentary act.
I do have reservations on delaying decisions on some other issues, particularly related to Sharifs etc. I also think the SC should have declared this, unambiguously, on apr 26 rather than issuing a dual meaning (rather multi-meaning) verdict.
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well in Pakistan the judicial review does not prevail in the essence it does in United states, justice Marshall established the supremacy of it in the famous Malbury vs Madison case, there is yet another implication in the case of judicial review which is
Montesqieu's famous Theory of Separation of Powers which provides with effective force as well as balance of power among diffrent organs of state...
BUT here in our country there has never been a case that established the supremacy of judicial review in true spirit so that it may become a convention,although we are highly impressed with Americans but we do not have the implication of separation of powers in letter and spirit, as sometime military intervenes, Executive crosses its limits then the judiciary has to come forward to guard the constitution...
there is no doubt that judiciary seems to be very powerful and proactive these days but its stance can be justified by the Doctrine of necessity...