The SC has relied on the doctrine of judicial review in deciding the case of Yousuf Raza Gilani's conviction over contempt of court. While there's no denying to the fact that SC does enjoy as well as exercise judicial review powers as enshrined in the constitution, I wonder if such discretionary powers are beyond any reins or these do have some checks on it. A few questions, Can SC overrule Parliament? Does Constitution of I.R.Pakistan guarantee Parliamentary Supremacy?

In case, there are no limits to the exercising of the powers of judicial review, it would reaffirm the faith of many in an old dictum which states;

Power corrupts. Absolute power corrupts absolutely.

If there are checks on the exercising of the judicial review powers, I would really like to know their description and legal sources.
Over to you, guys.
Regards,

Article 200 of constitution of IRP The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justice of both High Courts 1[:] Provided that such consent, or consultation with the Chief Justices of the High Courts, shall not be necessary if such transfer is for a period not exceeding two years at a time.
Clause (4) of the Article says, “A Judge of a High Court who does not accept transfer to another High Court under clause (1) shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan”. This clause 4 has been repealed in 20th amendment.
Article 175A in the Constitution which deals with appointment of judges to the Supreme Court, High Court and the Federal Shariat Court. He said the insertion of Article 175A in the Constitution says that there shall be a judicial commission for the appointment of judges to the Supreme Court, High Court and the Federal Shariat Court.
general Musharraf in 2003 also ensured the sacredness of Apex court by an ordinance which became the part of constitution which enabled the court to take action using its actual jurisdiction against the person or the institution thereto, that offended it and convict the same...

From what I can assume you are referring to the Contempt of Court Ordinance 2003 - it lacks legal backing necessary for an ordinance. It is yet sail through the Parliament of Pakistan for becoming a permanent law of the land.


Regards,

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Verily, His command, when He intends a thing, is only that He says "Be!" - and it is! (Al-Quran)

before the contempt of court ordinance which was promulgated in 2003 by then president Gen Musharraf, the prevailing law for the said subject was contempt of court act of 1976 which was repealed by article IV of the 2003 ordinance so from then on the law that safeguards the integrity of Apex court is that ordinance...
it has legal sanction behind that...when on November 9th 2003 (i think so) the ordinance was promulgated, the National Assembly was not in session so Musharraf implemented it through ordinance but later on it was made an act by the parliament...
The supreme court has convicted many including Jang news chief or what was his rank i don't know and sindh assembly member and PPP spokesperson for sindh sharjeel memon and Yousuf Raza Gillani is the latest victim...
Apex court considers the ordinance of 2003 as law the politicians especially PPP leaders do not consider it as law because they do not consider the parliament of that time as the legel parliament thus their acts are also considered by them illegal ipso facto...but this is mere mein nahi manta, mein nahi janta on their side...
court accept it as law, the law and constitutional experts call it law and jurists call it law, if it is not law then would you please tell me why didn't the lawyers of the convicts raise that point because if their clients were convicted by a law that is not law at all, they must have objected??? they didn't, because they also know that it is legally sanctioned law...

I am not a legal expert, but I am wondering that while the same CJ had declared each and every legislation null and void before the emergency of 3rd November 2007. Then what is the legal position of the legislation of 2003 ordinance???

my Dear sabah,make correction that he nullified every thing that was done after that emergency not prior to it...
actually i was expecting that question, the CJ had indeed quashed all that was done in the posterior of the date you have mentioned but that ordinance was implemented w.e.f 9th November 2003 and was verified by the parliament the very same year, and CJ certainly has got nothing to do with incidents that took place 4 years prior to emergency when he was not chief justice even...
2nd thing when the ordinance was verified by the parliament, the Cj cannot nullify such thing that was done by peoples' representatives...
3rd, i do not consider is as a legal provision but think that if someone has done something good should it be quashed like throwing a baby outside with bathwater...???

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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Ahmad Shakeel Babar
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"If you really want to achieve something the whole universe conspires for you to get your dream realized."

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...

I understand the current situation and am fully in favour of independence of judiciary. But I want this "DOCTRINE OF NECESSITY" be flushed out of our dealings as it neither have legal backing nor historical example of merit for the nation.

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Ahmad Shakeel Babar
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"If you really want to achieve something the whole universe conspires for you to get your dream realized."

i understand your concerns but in this case the doctrine of necessity really means need of the hour as executive has left the SC with no other choice...