The limits of judicial review

If the SC sees it fit to dabble in the constitution when it pleases, how is it different from military dictators?

Ahmad Sultan February 02, 2012
The Supreme Court of Pakistan seems to be arrogating power to itself while targeting the executive.

The problem here is is two-fold. The first issue is one of judicial review, and the limits of that tactic.

The Supreme Court has asked the attorney general whether the government intended to dismiss the chief of Army staff and the director general ISI, and when answered in the negative, asked for a written response from the government to the same effect. This translates as a written guarantee that both the aforementioned figures will not be relieved of their posts.

The prerogative for these actions in the Constitution lies solely with the prime minister, so the demand for a written guarantee is itself uncalled for, if not against the law. One can even go so far as saying that the Supreme Court has no right to even ask the question, let alone ask for the answer in writing. One has to wonder that if the prime minister does indeed dismiss the COAS and the DG ISI for whatever reason, will he be held in contempt once more since the attorney general has already assured the court that these actions will not be taken? Let us not forget that the prime minister has already been labeled as 'dishonest' by this very same court.

And since the SC is so fond of quoting cases in the US, here is one landmark case: Marbury vs. Madison (1803), in which the US Supreme Court struck down the Judiciary Act of 1789, an act passed by Congress, for being 'unconstitutional'. It found that the provision under which the petitioner, William Marbury, was able to bring his case directly to the Supreme Court was unconstitutional since it was against Article III (Section 2, Clause 2) of the US Constitution, so even though the case was decided in favour of the petitioner, the Supreme Court held that it had no jurisdiction to hear the case in the first place, thus could do nothing.

The petition was denied.

In short, even when declaring an act of Congress illegal, the US Supreme Court was limiting its own power, not expanding it as is the case in Pakistan today. One would like to hear the Supreme Court's views on this matter, since nowhere in the Pakistan Constitution does it say that the prime minister must assure the superior judiciary that certain individuals will not be dismissed from service.

The second issue is one of setting precedents. If the Supreme Court indeed does receive a written response from the government affirming the attorney general's view, will this process stop here?

What if somebody files a petition in the court asking it to make it binding on every incoming prime minister to assure the court that it will never fire the COAS or the DG ISI?

What will happen then, because by the very precedent the court itself has now set by demanding a written response from the government on this issue, it cannot turn that petition down. Or does the court not attach much importance to precedent, in which case it loses all credibility anyway since its legacy and decisions can be overturned by any of its successors, which keeping in mind some of its predecessors, is not a very appealing prospect. After all, it was this very institution that sent a democratically elected prime minister to the gallows.

Perhaps the Supreme Court would do well to assign limits to its powers of judicial review by introducing criteria for such cases. For example, can it rule on areas where the constitution is silent or unclear, or can it also rule on 'settled' areas of the constitution, the immunity afforded to the president - Article 248 - being one such 'settled' area.

At the end of the day, if the Supreme Court dabbles in the constitution how is it different from those who have abrogated it time and again?
Ahmad Sultan A graduate of Haverford College in 2010 who studied economics.
The views expressed by the writer and the reader comments do not necassarily reflect the views and policies of the Express Tribune.

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