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Which Should Declare the Legislation Unconstitutional? Courts or Legislatures

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Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative branches of the government and to determine whether they are consistent with the Constitution and legislation. Judicial review in a federation is a complex and controversial issue, as it involves the balance of power between the federal and provincial governments, as well as the role of the judiciary in interpreting and enforcing the Constitution.

Judicial review can protect the rights and freedoms of the citizens from arbitrary or oppressive laws or actions by the federal or provincial governments. It can also ensure that the Constitution is respected and upheld by all branches of the government. It can promote the rule of law and democracy by holding the government accountable to the Constitution and the people. It can also foster a culture of constitutionalism and civic education among the citizens and the officials.
It can resolve disputes and conflicts between the federal and provincial governments over their respective powers and responsibilities. It can also maintain the unity and stability of the federation by preventing secession or fragmentation.

Then, Judicial review can undermine the sovereignty and autonomy of the federal and provincial governments by allowing the courts to invalidate their laws or actions. It can also create tensions and resentment between different levels of government and regions. It can politicize the judiciary and compromise its independence and impartiality. It can also expose the courts to pressure and influence from political parties, interest groups, or public opinion. Judicial review can lead to judicial activism or overreach, where the courts go beyond their constitutional mandate and interfere with policy-making or legislation. It can also create uncertainty and inconsistency in the law by producing different or contradictory interpretations of the Constitution.

However, there is yet to be a definitive answer to whether Pakistan should empower its Supreme Court with judicial review. It depends on various factors, such as the historical, political, social, and cultural context of Pakistan and the design and implementation of its constitutional system. Firstly, it is critical to hold Parliamentary supremacy, where the parliament has the final authority to make or amend laws without being subject to judicial review. Some countries, such as the United Kingdom, follow this model. Then, there can be legislation with a two-thirds majority, like the Constitutional amendment, where the Constitution can be changed or updated by a particular procedure requiring a supermajority or consensus of both federal and provincial governments.
Another mode can be the Constitutional dialogue, where the courts, parliament, executive, and other stakeholders engage in a constructive and respectful exchange of views and arguments on constitutional issues. Some countries, such as South Africa, follow this model.

Lastly, it is critical to determine who should be constitutionally, democratically and representatively competent to declare the legislation unconstitutional and the delegated legislation unlawful.

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