Tariq Mahmood Awan
There is no clear or express constitutional provision in the Constitution of Pakistan that grants courts the power of judicial review over legislation or constitutional amendments. This is a foundational point that is often ignored or deliberately blurred in constitutional debates. The Constitution does talk about the supremacy of the Constitution, but it does not explicitly assign the task of enforcing that supremacy against the legislature to the judiciary. Article 8 of the Constitution states that there shall be no law that is repugnant to fundamental rights. Article 227 states that there shall be no law repugnant to the injunctions of Islam. These two provisions clearly bind the legislature. They establish constitutional limits. They also establish the idea that the Constitution is supreme. However, these provisions do not say who will invalidate a law passed by the legislature. The Constitution is silent on that question.
This silence is important. Constitutional silence cannot automatically be converted into judicial power. In Pakistan, the judiciary has assumed this role on its own. This assumption did not arise organically from the text of the Constitution. Rather, it was influenced by the Indian constitutional experience, where the judiciary gradually expanded its role through interpretation and precedent. Pakistan followed this path without a clear constitutional mandate.
Articles 184 and 199 empower the superior courts to enforce fundamental rights. This enforcement power is frequently misunderstood. Fundamental rights are primarily protections against executive action. They exist to restrain the state in its administrative and coercive capacity. Arrests, detentions, censorship, discrimination, misuse of authority, these are executive actions. When courts enforce fundamental rights, they issue directions to the executive branch of government. They do not legislate. They do not amend laws. They do not substitute parliamentary wisdom. There is a constitutional concept of separation of the judiciary from the executive. This concept is clearly mentioned and implemented. However, there is no constitutional concept of separation of the legislature from the judiciary. This distinction is critical. Thus, the legislature will remain the supreme.
The doctrine of separation of powers in Pakistan does not place the judiciary above the legislature. It merely distributes functions. Law making belongs to the legislature. Law execution belongs to the executive. Law adjudication belongs to the judiciary. The supremacy of the legislature under a parliamentary system is unquestionable. Parliament represents the people. It derives its authority directly from popular sovereignty. Under the Objectives Resolution, which is a substantive part of the Constitution under Article 2-A, sovereignty belongs to Allah Almighty and is delegated to the people of Pakistan. The people exercise this sovereignty through their chosen representatives. Those representatives sit in Parliament and in provincial assemblies. Because Parliament represents the sovereign will of the people, it has the power to structure the state. It can determine the structure of the judiciary. It can determine the structure of the executive. It can even regulate its own internal structure. This power is not accidental. It is inherent in parliamentary democracy. Unelected institutions cannot override this authority. Neither the judiciary nor the executive can challenge the substantive power of the legislature. Both are creatures of the Constitution. Both derive their authority from laws enacted by Parliament. An institution created by law cannot logically claim superiority over the law making body itself. This would invert the democratic order.
The question of whether a legislature is elected through transparent elections or through rigging is a separate political question. That question relates to electoral integrity, not constitutional authority. Even a flawed legislature remains constitutionally supreme until replaced through constitutional means. Courts cannot assume the role of political arbitrators. Article 239 of the Constitution provides the procedure for constitutional amendments. It clearly states that a constitutional amendment passed according to the prescribed procedure shall not be called into question in any court. This provision leaves no ambiguity. The framers of the Constitution deliberately insulated constitutional amendments from judicial interference.
Even if a law or a constitutional amendment appears to be inconsistent with Article 8 or Article 227, the Constitution does not authorize courts to strike it down. The remedy is political, not judicial. Public debate, parliamentary review, political opposition, and future legislation are the correct mechanisms. The legislature must correct itself.
Judicial supremacy in matters of legislation is not a feature of parliamentary governance. It is a feature of judicialized constitutionalism, which Pakistan never explicitly adopted. When courts assume the power to nullify legislation, they effectively convert themselves into a super legislature. This undermines democratic accountability. The idea that courts should have advisory powers is far more consistent with constitutional logic. Courts can advise on the quality of legislation. They can highlight ambiguities. They can point out possible conflicts with fundamental rights or Islamic injunctions. However, the final decision must rest with Parliament. A useful analogy is that of poetry. A poem is created by a poet. A literary critic may analyze it. A reader may interpret it. But the intent of the poem belongs to the poet alone. Similarly, the intent of legislation belongs to the legislature. An unelected institution cannot claim to know the legislative intent better than the lawmakers themselves. Judicial interpretation of legislative intent often becomes speculation. Judges do not participate in parliamentary debates. They do not face voters. They do not negotiate political compromises. Expecting them to determine legislative intent is unrealistic and constitutionally unsound. If legislation or constitutional amendments are harmful, irrational, or against public interest, the responsibility to fix them lies with the legislature. Parliamentary responsibility cannot be outsourced to courts. When courts intervene excessively, legislatures become complacent and irresponsible.
In the absence of a clear and express provision for judicial review in the Constitution of Pakistan, judicial restraint is not optional. It is mandatory. Courts must confine themselves to executive review and enforcement of fundamental rights against the state. They may issue orders to the government. They may restrain executive excesses. They may protect citizens from abuse of power. However, courts cannot issue orders to Parliament to legislate in a particular manner. They cannot invalidate laws based on subjective notions of structure or morality. Doing so violates parliamentary supremacy and distorts the constitutional balance. Parliament and provincial assemblies must take their constitutional role seriously. They must debate. They must review. They must amend. They must correct their own mistakes. Democratic self correction is the essence of parliamentary governance. In Pakistan, restoring parliamentary supremacy is essential for constitutional stability. Judicial overreach weakens democracy. Executive dominance weakens accountability. Only a strong, responsible, and supreme legislature can ensure constitutional order. The Constitution does not need judicial guardianship over Parliament. It needs parliamentary fidelity to constitutional principles. That fidelity must come from within the legislature, not from judicial coercion.
I have discussed it in detail in my third book, Fixing the Judicial Branch of Government in Pakistan.
