Con Admin Notes

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Significance and Implications of a Written Constitution

Pakistan is governed by a written constitution, that is to say, it has a basic document called the constitution of
the Islamic republic of Pakistan 1971. (Article 256) like any other written constitution, this document
encapsulates the most important rules relating to the state, its organ and institution, and their powers and
organization. It organizes the “government” and assigns to the different organs of the state their respective
powers and duties. (State v. Zia ur Rehman PLD 1973 SC 49)
The significance and implications of a written constitution briefly are that it is at once the source and the
touchstone of all government powers- legislative, executive, judicial.
A written constitution is the greatest improvement on political institution as said by CJ Marshall in Marbury v.
Madison (1803 5 US 137).
What must always be borne in mind is that “the written constitution is the source from which all government
power emanates; it defines its scope and ambit so that each functionary should act with in his respective sphere.
No power can therefore be claimed by any functionary which is not to be found within the four corners of the
constitution nor can anyone transgress the limits therein specified.” The essential point is that, constitution is
the paramount law and the authority which different organs created by its exercise is derived authority, that is
derived from the constitution. (Federation v. Saeed Ahmed PLD 1974 SC 151). “It can therefore not be said that
a legislature under a constitution possessed the same powers of omnipotence as the British Parliament. Its
powers have necessarily to be derived from and to be circumscribed within the four corners of a written
constitution” (CJ Hamood Ur Rehman in Zia ur Rehman Case)
The contrast between the parliamentary sovereignty like Britain and limited government under a written
constitution, like in US and Pakistan is; “all legislation is passed in parliament by simple majorities… the everyday
procedure is legally effective to repeal any and every constitutional safeguards, however sacrosanct… Thus the
powers of the courts like all other powers and rights are at the mercy of the parliament of the day” Naturally
“British Judges are actually conscious of the fact that they are at the mercy of a sovereign parliament, which can
quickly clip their wings if they fly too high”. (Legal Control of Government: Administrative Law in Britain and
the United States by Bernard Schwartz and Henry William Rawson Wade)
In Kilbourn v. Thompson (103 US 168), US Supreme Court held that the courts were competent to consider
whether the legislature’s proceedings were in conformity with the constitution.
James Madison in Federalist Paper No. 51 reflected that if we were angels only then we won’t require a
constitution otherwise it is a mandatory requirement in order to govern the people.
CJ Marshall in Marbury v. Madison (1803 5 US 137) said that “a written constitution is the greatest improvement
in the world of politics”.
Power of judicial review given by the written constitution. Marbury v. Madison (1803 5 US 137)
“A constitution is framed for ages to come, and is designed to approach immortality as nearly as human
institutions can approach it.”
CJ Marshall in Cohens v. Virginia, 19 U.S. (6 Wheaton) 264, 387 (1821)
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“Whether a law be void for its repugnancy to the Constitution, is, at all times, a question of much delicacy, which
out seldom, if ever, to be decided in the affirmative, in doubtful case. … But it is not on slight implication and
vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be
considered as void. The opposition between the Constitution and the law should be such that the judge feels a
clear and strong conviction of their incompatibility with each other.”
CJ Marshall in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810)
“Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion,
it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when
that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of
giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in
other words, to the will of the law.”
CJ Marshall in Osborn v. Bank of the United States, 22 U.S. (9 Wheaton) 738, 866 (1824)
“It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict
with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty.”
CJ Marshall in Marbury v. Madison 5 U.S. (1 Cranch) 137, 178
“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten,
the constitution is written. To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The
distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine
the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a
proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that
the legislature may alter the constitution by an ordinary act.”
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and
paramount law of the nation, and consequently the theory of every such government must be, that an act of
the legislature, repugnant to the constitution, is void.”
Supremacy of Constitution:
“It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall
be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution
of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions
that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by
that instrument.”
“[T]he constitution controls any legislative act repugnant to it. . . . It is emphatically the province and duty of the
judicial department to say what the law is. . . . So if a law be in opposition to the constitution; if both the law
and the constitution apply to a particular case, so that the court must either decide that case conformably to
the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must
determine which of these conflicting rules governs the case. This is the very essence of judicial duty. . . . Those
then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are
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reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the
law. This doctrine would subvert the very foundation of all written constitutions . . . It would be giving the
legislature a practical and real omnipotence . . . The judicial power of the United States is extended to all cases
arising under the constitution.”
CJ Marshall in Marbury v. Madison 5 U.S. (1 Cranch) 137
“Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or
should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not
entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a
decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited,
and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire
into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to
tread on legislative ground. This court disclaims all pretensions to such a power.”
CJ Marshall in McCulloch v. Maryland 17 U.S. (4 Wheaton) 316, 423. Regarding the Supreme Courts judicial
review power in the context of the Necessary and Proper Clause.
“This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they
control the Constitution and laws of the respective States, and cannot be controlled by them. From this, which
may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which,
and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to
create implies a power to preserve; 2d. That a power to destroy, if wielded by a different hand, is hostile to, and
incompatible with these powers to create and to preserve; 3d. That, where this repugnancy exists, that authority
which is supreme must control, not yield to that over which it is supreme.”
CJ Marshall in McCulloch v. Maryland 17 U.S. (4 Wheaton) 316
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor
internal controls on government would be necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable the government to control the governed;
and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control
on the government; but experience has taught mankind the necessity of auxiliary precautions.”
James Madison in Federalist No. 51
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Democracy
What is democracy?
A democracy is simply a system of government where the citizens directly exercise their power, and have the
right to elect government representatives who collectively create a government body for the entire nation
(like, a parliament). Another way to say the same thing is that it’s a type of government that’s ruled by
citizens, or in other words, people who are members of a society. In a democratic government, people have
certain basic rights that the government can’t take away from them, and these rights are internationally
recognized and guaranteed.
Types of democracy
The main forms of democracy are:
 Direct democracy
 Representative democracy
 Presidential democracy
 Parliamentary democracy
 Authoritarian democracy
 Participatory democracy
 Islamic democracy
 Social democracy
Every country interprets the meaning of democracy in their own particular way. With a wide range of different
geopolitical atmospheres, we see a large spectrum of democratic governments in existence around the globe.
I want to try to shed light on some of the major types of democracy seen today.
Direct Democracy
A direct democracy is when citizens get to vote for a policy directly, without any intermediate representatives
or houses of parliament. If the government has to pass a certain law or policy, it goes to the people. They vote
on the issue and decide the fate of their own countries. The people can even bring up issues themselves, as
long as they have a substantial consensus on the issue. Even taxes cannot be raised without the public
support!
When the population is small, educated and mostly homogeneous (at least politically), a direct democracy
doesn’t seem like a bad idea. Switzerland, for example, has had a long history of a successful direct
democracy. This model of democracy drives people to form parties for their own agendas. Comically enough,
due to this system of governance, one of the political parties in Switzerland is called, believe it or not, the Anti-
Powerpoint Party. The party’s singular aim is to prohibit the use of Powerpoint in office presentations!
However, most countries are too large and too complicated for direct democracy to work within their political
borders. In those cases, people prefer to elect representatives on their behalf, rather than vote on every single
issue.
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Representative Democracy
Representative democracy or indirect democracy is when people choose to vote for who will represent them
in a parliament. This is the most common form of democracy found across the world. Its emphasis lies on
protecting the rights of not only the majority of the people in the state, but also the minorities. By electing a
more qualified representative, a minority population would be able to vocalize its grievances in a more
efficient manner.
Most of the representative democracies of the world consider themselves to be liberal democracies. This is
because they value the needs of their individual citizens more than that of the entire state. This is why in
countries like India and the USA, it is difficult to proclaim a state of emergency.
Some states, however, feel constantly threatened by outsiders or civil unrest. These states, such as Israel and
South Korea, prefer a defensive democracy over a liberal one. This is done so that the government can
marshal an army at a moment’s notice. There are also a number of other less liberal forms of democracy –
from those that are almost liberal in nature to those that are just shy of being dictatorships. One classic
example of such a flawed model of democracy is the Republic of Singapore.
However, we’re talking about democracy here, so let’s stick to the liberal ones, shall we?
A liberal democracy can take on different forms, since different countries have different needs and different
ideologies. The following types are just a few subsets of representative democracy.
Presidential Democracy
Under a presidential democracy, the president of a state has a significant amount of power over the
government. He/she is either directly or indirectly elected by citizens of the state. The president and the
executive branch of the government are not liable to the legislature, but cannot, under normal circumstances,
dismiss the legislature entirely. Similarly, the legislature cannot remove the president from his/her office
either, unless the case is extreme. In a presidential democracy, the head of state is also the head of the
government. Countries like the USA, Argentina, and Sudan employ this kind of democracy.
Parliamentary Democracy
A democracy that gives more power to the legislature is called a parliamentary democracy. The executive
branch derives its democratic legitimacy only from the legislature, i.e. the parliament. The head of state is
different from the head of government, and both have varying degrees of power. However, in most cases, the
president is either a weak monarch (e.g. the United Kingdom) or a ceremonial head (e.g. India).
Authoritarian Democracy
This is when only the elites are a part of the parliamentary process. The individuals of the state are allowed to
vote for their chosen candidate, but “regular people” cannot enter the elections. Therefore, in the end, it is
only the ruling elite that decide on the various interests of the state’s population. Modern-day Russia under
Vladimir Putin is a classic example of this type of governance. Even Hong Kong generally falls under the same
category.
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Participatory Democracy
The exact opposite of an authoritarian democracy is the participatory form of democracy. There are different
types of participatory democracy, but all of them yearn to create opportunities for all members of a
population to make meaningful contributions to the decision-making process. It empowers the dis-
empowered by breaking up the state into small networks and prefers to empower community-based
grassroots politics. It values deliberation and discussion, rather than merely voting.
Today, no country actively practices this form of democracy. Although the theories behind it are sound, the
real-life application of this approach is fraught with complications. However, many social movements, like the
international Occupy movement, the Bolivarian movement in Venezuela and the Narmada Bachao Andolan in
India organize themselves around a participatory model of democracy.
Islamic Democracy
This form of democracy seeks to apply Islamic law to public policies, while simultaneously maintaining a
democratic framework. Islamic democracy has three main characteristics. Firstly, the leaders are elected by
the people. Secondly, everyone is subject to the Sharia law – including the leaders. Thirdly, the leaders must
commit to practicing ‘shura’, a special form of consultation practiced by Prophet Muhammad. The only
countries that fulfill these three characteristics are Iran, Afghanistan, Pakistan, and Malaysia. Other Islamic
countries, such as Saudi Arabia, fit the bill of authoritarian regimes better than that of democracies.
Social Democracy
As you can see, I tried to avoid including individual stances or opinions of varying political parties (such as a
religious democracy, i.e. political parties that advertise themselves to be the upholders of religious decorum).
However, one particular stance is worth mentioning. This is simply due to the sheer number of political parties
that swear by it – Social Democracy.
Social Democracy arose as a reaction to neoliberal policies in international economics. Under neoliberalism,
profit-making entities like multinational corporations can easily infiltrate other political states. They maintain a
level of sovereignty and mobility that no government can counter. The power of the political state seems
flimsy in comparison.
Social Democracy aims at empowering the state over the mere whims of the neoliberal market. The state can
increase its expenditure by providing free alternatives to overpriced private ventures. It may focus on
providing free education or free healthcare, so that people don’t have to depend on profit-making
corporations.
Conclusion:
This list obviously does not claim to be an exhaustive discussion around the different types of democracy that
exist today. There are as many theories concerned with democracy as there are governments in the world!
Nevertheless, while democratic models might differ, the spirit of democracy continues to be upheld in almost
every corner of the world!
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“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter,
under which the several branches of government hold their power, is derived, it seems strictly consonant to
the republican theory, to recur to the same original authority, not only whenever it may be necessary to
enlarge, diminish, or new-model the powers of the government, but also whenever any one of the
departments may commit encroachments on the chartered authorities of the others.”
James Madison in Federalist No. 49 (February 2, 1788).
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Federation with Parliamentary System

Article 1(1) Islamic Republic of Pakistan
Federating Units
(a) Provinces
(b) Islamabad
(c) FATA
(d) Territories are may be included in Pakistan, whether by accession or otherwise.
Federalism:
Though the constitution does not say so, it is a federal republic with a parliamentary form of government to suit
the conditions in Pakistan. The Constitution embodies all the necessary principle of representative democracy
such as:
(1) Limited term

(2) Elections to NA and PA (Article 51 and 106)
(3) Secret ballot (Article 226)
(4) Freedom of association and expression (Art. 17 and 19)
The oldest federal model is the constitution of USA. Const of US recognize the concept of dual citizenship and
all persons born in the US are citizen of the US and of the state wherein they reside. In India and Pakistan, the
federating units were not independent sovereign states but they were formed into a federation by the
constitution and there is no such thing as dual citizenship.
Republic:
“A republic is a government which derives all its powers directly or indirectly from the great body of people and
is administered by persons holding their office during pleasure for a limited period… it is essential for such a
government that the person administering it be appointed either directly or indirectly, by the people and that
they hold their appointments by either of tenures just specified” (Federalist Paper No. 39 by James Madison)
In the words of Abraham Lincoln a “government of the people, by the people, for the people.”
When someone asked Benjamin Franklin “what have you given us?” He replied “A Republic, if you can keep it”.
The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. Consequently, anxious
citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been
produced behind closed doors. The answer was provided immediately. A Mrs. Powel of Philadelphia asked
Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever,
Franklin responded, “A republic, if you can keep it.”
The system in Pakistan is one Constitutional, not of parliamentary supremacy
In Britain one of the basic features is that the parliament is sovereign and there are in law no constitutional
safeguards against the powers of parliament. “Thus the powers of courts like all other powers and rights are at
mercy of the parliament of the day.” (Legal Control of Government: Administrative Law in Britain and the
United States by Bernard Schwartz and Henry William Rawson Wade)
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The second basic feature of the English Parliamentary system is the cabinet system, which means ministerial
responsibilities to parliament. Under this system the cabinet formulates the “general policy of the government
and is collectively responsible to the parliament for that. Apart from this general function of coordination and
leadership, it exercises actual executive and legislative functions” (Benazir Bhutto v. Federation PLD 1988 SC
416)
“Our Constitution has its foundation in representation; it is not a system of self government but a system of
control and limitation of government” CJ Muhammad Haleem in Benazir Bhutto v. Federation (PLD 1988 SC
416)
While Pakistan has adopted the principle of ministerial responsibility of parliament, it has not accepted the
English doctrine of the absolute supremacy of parliament in matters of legislation. In this respect it has followed
the American constitution and other systems modeled on it. In that respect, our system is not that of
parliamentary supremacy but one of constitutional supremacy.
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Original 1973 Constitution and subsequent changes

The constitution of 1973 in its original form was purely parliamentary where “executive authority vested in the
Prime Minister and the President was just a nominal head of the State representing the unity of the republic.
Not only that but Article 48(3) required that orders of the president for validity were to be countersigned by the
PM” CJ Sajjad Ali Shah in Al-Jehad case PLD 1997 SC 84.
Article 48 originally prescribes that in the performance of his function, the President shall act on and in
accordance with the advice of PM and such advice shall be binding on him.
There has been tinkering with the Original 1973 const. from time to time, but major and radical changes were
introduced by eighth amendment.
Eighth amendment drew a line of demarcation between the functions in the exercise of which the president
was to act on the advice of the PM or the cabinet and the functions in the discretion of the president. It is
obvious that in the performance of the function which under the constitution lay in his discretion, the president
was not bound to seek the advice of the PM or the cabinet and even if such an advice was sought or tendered,
it was not binding upon him.
Is the constitution now a hybrid?
Act 1 of 1997 tried to undone the effect of eighth amendment. This was an attempt at restoring the original
1973 constitution, but the attempt was short-lived for by the controversial Legal Framework Order 2002 as
validated by seventh amendment.
“… it is no longer to correct to think of the constitution of Pakistan as providing for a purely parliamentary system
according to the Westminster model. Instead, what can be seen is that over time, Pakistan has evolved its own
political system so as to suit the political conditions found here. No objection can now be taken to the said
system on the basis that it provides for a balance of powers as opposed to concentrating all powers in the hand
of the PM” (Pakistan Lawyers Forum Case PLD 2005 SC 719)
Islamic Provisions
The position thus is that the provisions of Article 2-A do not empower any court to invalidate a provision of the
constitution on the grounds that it is inconsistent with the injunction of Islam as laid down in the Holy Quran
and the Sunnah of Holy Prophet (PBUH). In the existing constitutional set up for the country to change a
provision of the constitution is a matter for the people’s representatives sitting in the parliament and not for
the courts. As regards as other laws made under the constitution the question as to whether a law is repugnant
to the injunctions of Islam is a matter for the courts established under Chapter 3-A of part VII of the constitution
and for legislature. Article 203G in that chapter expressly bars the jurisdiction of all courts, including the
supreme court and the high courts to in anyway deal with any matter with in the exclusive jurisdiction of the
Federal Shariat Court, and by Article 203GG in that chapter a decision rendered in the exercise of that
jurisdiction is binding upon the High Courts and the subordinate courts.
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In Mahmood Khan Achakzai Case (PLD 1997 SC 426), Saleem Akhtar wrote that “it is not open to the court to
hold that a provision of the constitution can be struck down on the grounds of its being violative of the Objective
Resolution or of National Aspirations or higher ethical notions or of philosophical concepts of law or of the basic
structure.”
The view that Article 2A is not a source of power to declare laws invalid has been consistently followed by the
Supreme Court in subsequent cases e.g. Wukala Mahaz v. Federation and Province of Punjab v. National
Industrial Co-operative Credit Corporation.
Trust Theory
The trust theory enshrined in the Objective Resolution and the preamble to the constitution that “sovereignty
over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of
Pakistan within the limits prescribed by Him is a sacred trust” as was observed by Hamood ur Rahman in Asma
Jillani v. Govt. of Punjab provides our own grundnorm (PLD 1972 SC 139).
Islam as State Religion – Article 2
Article 20 of the constitution, which guarantees freedom to profess religion and corresponding provision in the
First Amendment of the US constitution, which mandates that “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof..”
Article 2 has been highlighted in number of cases. These cases seem to have settled the following propositions:
(i) That Pakistan is an ideological State;
(ii) That the ideological foundation of Pakistan is islam;
(iii) That Article 2 does not visualize the theocratic state, and
(iv) That Article 2 is not a self-executing provision or for that matter enforceable by the courts.
Distinction between Secular and Ideological State
The distinction between secular and ideological state was brought into bold relief in Islamic Republic of Pakistan
v. Abdul Wali Khan by Muhammad Gul J, after referring to the preamble to the constitution as an eloquent
testimony to the affirmation of Pakistan ideology, he observed:
“in a secular state, the legislature is a supreme and laws are made in accordance with the will of the majority ,
free from any outside curbs. Recently legislation was reported to introduce in one of the Scandinavian Countries
to legalize marriage between a brother and his sister. This would be an impossibility in Pakistan… because of
Quranic injunctions”
Islam as a way of life
In Nizam khan v. Additional District Judge (PLD 1976 Lahore 930), Muhammad Afzal Zullah J observed that
“Article 2 deals with the tangible aspects of statecraft including realm of political science, jurisprudence, laws
and affairs of State properly so called” He further said that “However Article 2 is not enforceable by courts”
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The entire way of life as envisaged by islam, so observed the judge, “cannot be enforced by the courts. They can
only enforce basic juridicial principles and concepts of Islam in fields where permissible by the Constitution.”
In Haq Nawaz v. Province of Punjab (1997 MLD 299), Mian Nazir Akhtar observed that “Pakistan is an Islamic
state, ideologically committed and constitutionally bound to follow the religion of Islam.”
The effect of an establishment clause in the US or indian Constitution is to erect a wall of separation between
church and state so that Man’s relation to His God was made no concern of the state and the state must be
neutral in matters of religious theory, doctrine and practice.
Federal Shariat Court
Under Article 203-D, Federal Shariat Court has power to examine and decide whether or not any law or provision
of law is repugnant to the injunctions of Islam. The expression ‘Law’ is defined in Article 203-B clause (c) to
include any custom or usage having the force of law but does not include the constitution, MPL, any law relating
to the procedures of any court etc. Article 203-F provides an appeal to a bench of the Supreme Court, Called the
Shariat Appelate Bench.
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Rule of Law
Rule of law entails equality of all the citizens irrespective of sex, caste, creed or color and ensures justice to all
and sundry. The rule of law is a concept defined as Robert M. Unger has put it by “the interrelated notions of
neutrality, uniformity, and predictability.” It contains the idea that governmental power must be exercised
within the constraints of rules that apply to ample categories of persons and acts and these whatever, they may
be must be uniformly applied. In the words of the Massachusetts constitution, it means a government of laws
and not of men. In short it means supremacy of law. John Locke said “Wherever the law ends tyranny begins.”
In Common Sense, Thomas Paine reminded the American colonists that in a free republic “ the law is king” and
that if a day were to be set aside to celebrate the republic’s achievements then it should not be focused on a
single man but on the law itself.
Essential Characteristics of the Rule of Law
Aristotle said: The rule of law is better than that of any individual. There is another quote from Aristotle’s The
Politics that ‘when laws do not rule, there is no constitution’. The rule of law in its modern sense owes a great
deal to the late Professor AV Dicey whose writings are of enduring significance. He pinpoints the essential
characteristics of the rule of law as below:
 The supremacy of law, which means that all persons (individuals and government) are subject to law.
 A concept of justice which emphasizes interpersonal adjudication, law based on standards and the
importance of procedures.
 Restrictions on the exercise of discretionary power.
 The doctrine of judicial precedent.
 The common law methodology.
 Ensuring legislation as prospective and not retrospective.
 An independent judiciary.
 The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by
the executive.
 An underlying moral basis for all law.
Importance of Rule of Law
The rule of law is a cornerstone of well-functioning democracy while if it is blatantly violated; the establishment
of a democratic structure in the country is jeopardized. The rule of law ensures stability, discipline and order in
the society. But its absence and rampant corruption leading to erosion in social values are two main hurdles to
the betterment and development of our country.
It goes without saying that the rule of law is meaningless when the law itself has become flawed and does not
ensure the enjoyment of all rights to all, without discrimination.
The constitution of a country is a living and vibrant document that determines the future direction of the nation,
provided there is respect for the document that stands for Rule of Law. In a country where a single person is
authorized (by self-acclaimed decree or through an authority itself lacking competence under the law) to amend
the supreme law of the land, there can be neither democracy nor constitution.
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Rule of law is contrasted with every system of government based on the exercise by persons in authority of
wide, arbitrary or discretionary powers of restraint.
Rule of law as a characteristic of our country, not only that with us no man is above the law but that here every
man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals.
Relevant Provisions of Constitution of Pakistan
4 Right of individuals to be dealt with in accordance with law, etc.

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every
citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular :-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken
except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.
5 Loyalty to State and obedience to Constitution and law.

(1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be
and of every other person for the time being within Pakistan.
248 Protection to President, Governor, Minister, etc.

(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief
Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and
performance of functions of their respective offices or for any act done or purported to be done in the
exercise of those powers and performance of those functions:
Provided that nothing in this clause shall be construed as restricting the right of any person to bring
appropriate proceedings against the Federation or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a
Governor in any court during his term of office.
(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court
during his term of office.
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(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted
during his term of office in respect of anything done by or not done by him in his personal capacity
whether before or after he enters upon his office unless, at least sixty days before the proceedings are
instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law,
stating the nature of the proceedings, the cause of action, the name, description and place of
residence of the party by whom the proceedings are to be instituted and the relief which the party
claims.
The rule of law in this sense excludes the idea of any exemption of officials or other from the duty of obedience
to the law, which governs other citizens, or from the jurisdiction of the ordinary tribunals.
In X Ltd. V. Morgan-Grampian Limited, Lord Donaldson MR said, the constitutional position is clear parliament
makes the law and it is the duty of courts to enforce that law, whether or not they agree with it. Every citizen,
every corporate body and every authority, whether national or local is entitled to campaign to change the law,
but until the law is changed it is their duty to obey it. That is what parliamentary democracy and the rule of law
is all about. Each one of us surrenders a part of his personal freedom of action and choice and in return is
protected by the law from the consequences of others seeking to exercise an unfettered freedom of action and
choice.
In a system of government under a written constitution, like Pakistan, the written constitution is the rule of law.
Article 4 and 5 of the constitution of 1973 embody the essence of the rule of law.
As was observed by Muhammad Haleem CJ in Benazir Bhutto v. Federation of Pakistan any application of a
principle of Anglo-Saxon jurisprudence, which may be destructive of the rule of law, which is so worded in Article
4 of the constitution, as to give protection to all citizens has to be discouraged.
Article 4 is an original contribution to the constitutional law. It embodies the rule of law. It prevents the
government from taking any action in this country for which there is no legal sanction and it at the same time
debars the legislature from creating an authority whose actions are not subject to law. All persons exercising
authority in Pakistan must do so only in accordance with law.
The right to access to justice, it has been held, is part of the rule of law, as derived from Article 4 read with
Article 9. This includes the right to have a fair and proper trial and the right to have an impartial court or tribunal,
as also to have a reasonable opportunity to defend, and all this depends on the independence of judiciary.
While Article 4 stresses the right to enjoy the protection of law and to be treated in accordance with law, Article
5 stresses the obligations and duties of the citizens. Thus the constitution is not a code of rights only; it lays
equal stress on obligations. Nobody is above the law, everybody even a prime minister is under clause 2 of
article 5 of the constitution bound to obey the constitution and law as that is the basic obligation of every citizen.
Lord denning in Gouriet v Union of post office workers no matter how powerful, I would use Thomas fuller’s
words over 300 years ago: be you never so high, the law is above you.
In Dr. Mubashir Hassan v. Federation of Pakistan (NRO Case), it was discussed that Article 4 of the constitution
commands that, all the citizens without any discrimination shall be dealt with in accordance with law, so
enforcement of law leaves no room for creating any distinction between the citizens.
XYZ notes 16
In NRO case majority hold that, we the Judges of the Supreme Court have made an oath before Allah Almighty
to "preserve, protect and defend the Constitution of the Islamic Republic of Pakistan" and, thus, it is our
bounden duty to take appropriate action whenever we find that the Constitution is not being obeyed or its
express commands are, wittingly or otherwise, being disregarded. Let nobody forget that in the not too distant
past we stuck to our commitment to the Constitution and constitutionalism and were not shy of giving personal
sacrifices for fulfillment of that commitment.
An essential feature of modern courts is their independent function, which is based on the separation of powers
doctrine. Separation of powers refers to a model of governance whereby the three branches of government
(executive, legislative, and judiciary) function separately and equally, while acting as checks on each other.
Under the rule of law, judicial independence is generally defined as “freedom from direction, control, or
interference in the operation or exercise of judicial powers by either the legislative or executive arms of
government.
In Walker v. Birmingham where petitioner, Walker, challenged a judgment finding them in contempt of court
for violating an injunction. Petitioners argue that the injunction stems from their violation of unconstitutional
ordinances.
In this case it was held that the rule of law that Alabama followed in this case reflects a belief that in the fair
administration of justice no man can be judge in his own case, however exalted his situation, however, righteous
his motives, and irrespective of his race, color, politics, or religion. This court cannot hold that the petitioners
were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. On may
sympathize with the petitioner’s commitment to their cause. But respect for judicial process is a small price to
pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom. It means that
Jurisdiction of court can be challenged. However, constitutionality of court cannot be challenged.
In his dissenting opinion, CJ Warren said it shows no disrespect for law to violate a statue on the ground that it
is unconstitutional and then to submit one’s case to the courts with the willingness to accept the penalty if the
statue is held to be valid. It gives the idea of legitimized disobedience.
In Zahur Elahi v. ZA Bhutto a reference made by the government of Pakistan against the National Awami Party
and its leaders under Sections 6(2) of the political Parties Act 1962 was pending before the supreme court when
Mr. ZA Bhutto, Prime Minister of Pakistan, made a speech, in which he was alleged to have said that ‘if Supreme
Court in its wisdom or according to its own understanding gives a decision against us then it will not be my
decision, or that of the people but will be a decision of the supreme court. We will accept this decision but the
responsibility for the consequences will be that of Supreme Court.’ The Supreme Court took action against ZA
Bhutto on the grounds that the speech amounted to contempt of the court. One of the grounds raised in defense
was based upon article 248 of the constitution which grants immunity to the President, Governor and Prime
Minister and others, so that among others they ‘shall not be answerable to any court for the exercise of powers
and performance of function of their respective offices or for any act done or purported to be done in the
exercise of those powers and performance of those functions. ‘
Hamoodur Rehman who was Chief Justice at that time, was not in position to draw a firm line between the
functions of the PM in parliamentary democracy, and his role as the leader of the political party in power and
to say on which side of the line the speech in question could fall. It is uncommon for leaders of political parties,
leading a government as PM, to address public meetings for explaining or justifying the policies of his
government with regard to the state of affairs prevailing in the country, particularly when public opinion is
XYZ notes 17
disturbed by drastic actions of the government in power as in the present case. The Prime Minister was
therefore held entitled to the immunity given by Article 248.
Chief Justice said: ‘Since we are not bound by the constitution and have to give effect to its provisions, it is
necessary that we should express our view with regard to the scope of Article 248.learned counsel for the
petitioner has conceded that under a system of parliamentary democracy, where a leader of a political party
becomes also the PM, it is not easy to define the exact scope of his powers and functions, but this much is
certain that his powers and functions are derived from the constitution and must, therefore be referable to the
constitution. Hence, since neither the constitution nor any law can possibly authorize him to commit a criminal
act or does anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts.
Even a Prime Minister is under clause 2 of article 5 of the constitution bound to obey the constitution and law
as that is the basic obligation of every citizen. The scope of the powers and functions of a PM cannot possibly
extend to the committing of contempt of court which is punishable under the constitution itself and therefore
by necessary implication prohibited. If his speech did prejudice the pending proceedings against the NAP and
also contained a veiled threat to this court then it amounted to contempt and was not protected by Article 248.
The constitution itself declares by Article 190 that all executive and judicial authorities throughout Pakistan shall
act in aid of the Supreme Court.
‘we are also in agreement with the learned counsel for the petitioners that the immunity provisions must, in
accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the
immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be
extended. The immunity is in the nature of an exception to the general rule that no one is above the law. It is,
nevertheless, not possible to lay down any hard and fast rule as to what is or what is not within the powers and
functions of a minister or a PM but each case will have to be judged on its own facts and circumstances.
In Wilkes v. Woods, Wilmot CJ said that ‘the law makes no difference between great and petty officers; thank
GOD; they are all amenable to justice.’
Abraham Lincoln said in his speech “obedience to law (even bad laws) will preserve liberty.”
It has been said that ‘the right to judicial review in Britain is merely the practical aspect of the rule of law. If
power is used in a way not authorized by Parliament, the courts protect or compensate the citizen. Some
effective remedy is available against every sort of public authority, and there is no sovereign immunity in any
true sense.’
The judicial review is merely a practical aspect of the rule of law finds expression in Article 199 and 184(3) of
the constitution of Pakistan. Article 199 empowers High Court to prohibit a public functionary to do something
he is not permitted by law to do, to direct a public functionary to do something he is required by law to do, to
declare any act of a public functionary to be without lawful authority and void, to direct the production of a
person in custody in order to determine the lawfulness of his detention and to require the holder of a public
office to show under what authority of law he holds that office. And Article 199, clause 1 c and article 184 3
empowers High Court and the Supreme Court respectively to enforce the fundamental rights enshrined in part
ii chapter 1 of the constitution.
In Bush v. Gore, Justice John Paul Stevens while giving dissenting opinion observed that, although we may never
know with complete certainty the identity of the winner of this year's Presidential election, the identity of the
loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
XYZ notes 18
In Imtiaz Ahmad v. Government of Pakistan, it was observed that, the power under article 199 of the
constitution is the power of judicial review. The power is a great weapon in the hands of judges, but the judges
must observe the constitutional limits set by the parliamentary system on the exercise of thus beneficial power
namely: the separation of powers between the Parliament, the Executives and the Courts.
Meaning of Law in ‘Rule of Law’
Law has no definition except in a particular context. In other words the context of the term law is a written
constitution called the constitution of Pakistan, which is formal document. A constitution is written so that its
terms are not mistaken or forgotten. It is in the exercise of the power given by the written constitution that the
legislatures make laws and generally speaking such a formal document, as a written constitution is, would not
countenance unwritten and informal laws.
Distinction between Constitution and Law
Article 203B is that constitution is law but not be treated as law for the purposes of Chapter 3A of part VII i.e.
Federal Sharait Court. The idea thus was to exclude the question of validity of the constitution itself from the
jurisdiction of court but to include customs and usages having the force of law within that jurisdiction.
Power to make Laws- Relevant Articles 141, 142, 143
The expression ‘act of majlis e shoora’ means an act passed by parliament or the National Assembly and
assented to or deemed to assent by the president. ‘Act of Provincial Assembly’ means an act passed by the
provincial assembly and assented to or deemed to assent by the Governor; Federal Law means a law made by
or under the authority of Parliament and provincial law means law made by or under the authority of the
Provincial Assembly.
In Asma Jillani case (PLD 1972 Sc 139) CJ Hamood Ur Rehman define law, “which is called upon to administer
is made by a person or authority legally competent to make laws and the law is capable of being enforced the
legal machinery”
This definition of law was invoked in Manzoor Elahi v. Punjab Government, Brig FB Ali v. State and Federation
of Pakistan v. United Sugar Mills.
In, Federation of Pakistan v. United Sugar Mills, the expression Law was held to mean positive law that is to
say ‘a formal pronouncement of the will of a competent law giver and did not include what are mere legal
precepts or theories.’
In Rahim Shah v. Chief Election Commissioner, it was held that the term ‘law’ is not confined to statue.
The ratio of this case is that the principle of natural justice namely that no man shall be condemned unheard to
be read into every statue. So understood, the observation “the term law is not confined to statue” would mean
that the term means not only what is expressly provided in the statue but also what, by necessary implication,
it is to be read into it such as the right of being heard. For what is necessarily implied is as much part of the
statue as what is expressly stated.
XYZ notes 19
Effect of Article 189, 201 – The Doctrine of Precedent
Article 189 and 201 appear to recognize the doctrine of precedent. “It is wee settled that when the constitution
speaks of law, it is speaking of the law, it is speaking of the law as interpreted or declared by the judges in the
exercise of the judicial power of the state.” (Chokolingo v. AG 1981)
‘The interpretation of a constitutional provision enunciated by the Court is supreme law of the land like the
constitutional itself.’ Cooper v. Aaron
‘the interpretation of a provision of the constitution by the Supreme Court becomes part of the constitution.’
Al Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84)
it was held in above case, since the interpretation of the constitution or any enactment becomes law, it is
incumbent on all executive and judicial authorities to act in aid of Supreme Court as they are required to do by
Article 190 by treating that interpretation as law. Thus though the advice of the Prime Minister is under the
constitution binding upon the president, yet the Supreme Court held in this case that the advice would be
binding only if it is in accordance with the law as declared by the Supreme Court. There cam therefore be no
doubt that where the supreme court or a high court has interpreted a provision of the constitution or any
enactment or statutory instrument, the interpretation is as much binding upon the judicial and executive
authorities as the constitution, the enactment or the statutory instrument, as the case may be.
Regarding the observation in Al-Jehad Trust case that clause 1 of Article 8 of the constitution ‘is founded on the
assumption that custom or usuage has the force of law as the law has itself but will not be enforced to the
extent of inconsistency with the fundamental rights.’ it does not mean that every custom and usage has the
force of law. An example of any custom or usage having the force of law is the Punjab Law Act 1972, which by
section 5 provided that in any question regarding succession, special property of females etc. “the rule of
administration shall be any custom applicable to the parties concerned.” Undoubtedly, the customs and usages
mentioned in the Punjab Laws Act 1972 had the force of law, because the Punjab Laws Act 1972 had so declared.
XYZ notes 20
Separation of Powers
The doctrine of separation of powers “has its origin in western European struggles between legislative bodies
and monarchs. It was particularly the English experience that formed the basis for the political beliefs most
common in the American colonies. From the time of English civil war there was a continued shifting of power
between the monarch and parliament. This history led to the practical delineation of functions between the
branches of English government, which was the basis for John Locke’s view of the proper division of powers.
But the concept of separation of powers was explained most convincingly by Montesquieu whose writings were
well known through out Western Europe and the American colonies in the Eighteenth Century.” (M Yaqub Ali J
in Manzoor Elahi v. Federation PLD 1975). When Montesquieu’s famous treatise on the spirit of laws appeared
in 1748, “ it dwelt upon the separation of executive, legislative and judicial powers in the british constitution as
the most remarkable feature of that system. Accustomed to see the two former powers, and to some extent
the third also, exercised by or under the direct control of the French monarch, Montesquieu attributed English
freedom to their separation.” (The American Common Wealth by James Bryce).
In England
In Hinds v. The Queen, Lord Diplock made the following significant observations:
“…The UK has no written constitution, comparable with that of Australia and the US, yet in the sense that the
legislative, the executive, the judicial powers are vested in three separate organs, the basic concept of
separation of powers is recognized even in the unwritten constitution of that country.”
In Duport Steels Ltd. V. Sirs, Lord Diplock reiterated the same view. He said that “it cannot be too strongly
emphasized that the British Constitution though largely un-written, is firmly based on the separation of powers.
Parliament makes the laws, the judiciary interpret them.” In another case, the House of Lords again said that
“parliament makes the law, executive carry the law into effect and judiciary enforce the law.”(H v. Home Office
1993)
“It is feature of the peculiarly british conception of the separation of powers that parliament, the executive and
the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right
to make whatever laws it thinks right. The executive carries on the administration of the country in accordance
with the powers conferred on it by law. The courts interpret the laws and see they are obeyed.” (Reg. v. Home
Secretary 1995)
In USA
Separation of powers has been described as the centerpiece of the American constitutional plan; it is ‘basic to
the constitutional structure established by the Framers’ (US v. Woodley 751)
According to James Madision, writing in the Federalist No. 47,

“the reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. When the
legislative and executive powers are united in the same person or body, says he, ‘there can be no liberty,
because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute
them in a tyrannical manner’. Again: ‘where the power of judging is joined with the legislative, for the judge
would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence
of an oppressor.”
XYZ notes 21
The principle of separation of powers in the American Constitution is expressed in the first section of each of
the first three articles. “Article I S.1, provides that all legislative powers herein granted shall be vested in a
congress of the US, which shall consist odf a senate and a House of Rep. Article III, S.1, provides that the judicial
power of the US shall be vested in one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. And Art II, S.1, c1 1, provides that the executive power shall be vested in a
President of the US. (Morrison v. Olson)
It is to be noted that the framers of the American Constitution ensured not only that there should be separation
of Judiciary from the other two branches but also that there should be a separation of the legislature from the
executive.
Thus, separation of powers in the American Constitution is more complete than in English Constitution.
The prevailing view is the one expressed by Justice Jackson in Youngstone Sheet and Tube Co. v. Sawyer “In
designing the structure of our government and dividing and allocating the sovereign power among three co-
equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate
powers were not intended to operate with absolute independence.”
In Pakistan
In the constitution of Pakistan, there is no express separation of powers and functions. The Constitution is
divided in three parts: Part III the Federation of Pakistan, which is sub-divided into various chapters - Chapter I,
the president; Chapter 2, the Parliament; Chapter 3, Federal Government; Part IV the provinces; Part VII, the
Judicature.
It was said in Fauji Foundation case that “it is a misnomer to say thay the separation of powers is an accepted
feature of our Constitution as a ground for seeking off the impugned legislative instrument” and that “it cannot
be urged that the judicial power is constitutionalized in courts as in the American Constitution, nor has this word
been used in the Constitution.”
As was held in Messrs. Mamukanjan Cotton Factory v. The Punjab Province (PLD 1975), to hold otherwise
“would also seek to throw into serious disarray the pivotal arrangement in the constitution regarding the
division of sovereign powers of the state among its principle organs, namely, the Executive, the Legislature and
the Judiciary, each being the master in its own assigned field under the constitution.”
In Mehram Ali v. Federation of Pakistan and Liaqat hussain v. Federation of Pakistan. In the first case, Ajmal
Mian CJ said: “…our constitution is founded on the theory of tracheotomy of power between the three organs
of the state, namely, the Legislature, the Executive and the Judiciary.” In Liaqat Hussain case, CJ Ajmal Mian
said: “we must look to the scheme of the constitution which is based on the principle of tracheotomy of power,
meaning thereby that the power is divided between the executive, the Legislature and the Judiciary. Each of
these three limbs of the state enjoys complete independence in their own sphere.”
“No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened
patrons of liberty, than that on which the objection is founded. The accumulation of all powers, Legislative,
Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-
appointed, or elective, may justly be pronounced the very definition of tyranny.”
James Madison in Federalist No. 47 (1788-01-30)
XYZ notes 22
XYZ notes 23
The Concept of Judicial Power

Preliminary:
Judicial power is a constitutional concept to be contrasted with the legislative and executive powers of the state.
It is that part of the sovereign power of the state which is inherent in the judiciary or the judicial department as
an independent and co-ordinate branch of government, by reason of the system of division of power itself under
which, as Chief Justice Marshall put it, “the legislature makes, the executive executes and the judiciary construes
the law”. It is an independent and recognizably separate function of government which is exercised through
judges appointed by the state.
Definition of Judicial Power:
Judicial power has no fixed definition. It sums up the whole history of the administration of justice in English
and American courts through the centuries. It has been broadly defined as ‘the power to hear and determine
those matters which affect life, liberty, or property, and the Judiciary, or judicial department of the government
as that branch thereof which is intended to interpret, construe, and apply the law. In the context of the American
constitution, ‘judicial power is the power of the court to decide and pronounce a judgment and carry it into
effect between persons and parties who bring a case before it for decision’. It is the right to determine actual
controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. It can explicitly
only be used in a case or controversy according to the constitution.
As distinguished from the legislative power, which is to declare what the law should be, judicial power may be
defined as the power to declare what the law is or has been. Lord Devlin, in United Engineering Union v.
Devanayagam (1967 2 All ER 367), stated that it is one of the characteristics of judicial power that, ‘it is
concerned with the past and present and not the future’.
Therefore, judicial power is one of the sovereign powers of the state, which, in a system of government based
on separation of powers, vests in the judiciary. In State v. Zia-ur-Rehman PLD 1973 SC 49, it was held that
judicial power is the power to decide and that includes the power of declaring what the law is and its
construction so far as it is written law.
Judicial Power in America:
Under the Constitution, Article 3, Secion 1, “The Judicial Power of the US shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and establish”.
Judicial Power in Pakistan:
In the Constitution, there is no express vesting of the judicial power in the courts. However Article 175 is the
following:
175 Establishment and Jurisdiction of Courts.
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province [and a High Court for the
Islamabad Capital Territory] and such other courts as may be established by law.
XYZ notes 24
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or
under any law.
(3) The Judiciary shall be separated progressively from the Executive within [fourteen] years from the
commencing day.
Chapter 2 of Part VII contains provisions for the method of appointment and security of the tenure of the
judges of the Supreme Court; it provides for the original, appellate, and advisory jurisdiction of the court.
Included in its original jurisdiction by Article 184 is the power to make an order of the nature mentioned
in Article 199 “if it considers that a question of public importance with reference to the enforcement of
any of the Fundamental Rights conferred by Chapter 1 of Part 2 is involved”.
Articles 202 and 203 read:

202. Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of
the Court or of any court subordinate to it.
203. Each High Court shall supervise and control all courts subordinate to it.
The absence of the expression, “judicial power” from the Pakistani Constitution is not of any significance. The
current of recent judicial authority in Pakistan also runs strongly against the view that the judicial power is not
constitutionalized in the courts.
In Registrar v. Wali Muhammad 1997 SCMR 141, 155, it was held that it is the constitutional concept of judicial
power with which Part VII of the Constitution deals.
Not only does judicial power vest in the courts but as held in Mehram Ali v. Federation PLD 1998 SC 1445, any
court or tribunal which is not founded on any of the articles of the constitution cannot lawfully share judicial
power with the courts referred to in Articles 175 and 203 of the constitution.
Since separation of powers is implicit in the constitution, powers of the judiciary cannot be transferred by law
to any other body.
Attributes of Judicial Power
When the question is whether a branch of government has exceeded its power by assuming judicial power or
by entrusting judicial power to an agency other than a court of law, that question will necessarily turn upon
what does judicial power consist of, or what are the attributes of judicial power.
According to Chief Justice Marshall in Marbury v. Madison 1803 5 US (1 Cranch), “it is emphatically the province
and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule”. That case also declared the basic principle that the federal
judiciary is supreme in the exposition of the law of the constitution as that has been recognized as a permanent
and indispensable feature of our constitutional system. It established what Lord Bridge described as the
sovereignty of courts in interpreting and applying the law as one of the twin foundations supporting the rule of
law in X Ltd. V. Morgan Grampian (1991) 1 AC 1. Chief Justice Hamood-ur-Rehman also said the judiciary is the
most competent body to determine the meaning of the provisions of the written constitution.
It is on this principle that the courts in Pakistan have always claimed a right to interpret the constitution and to
say as to what a particular provision means or does not mean.
Judicial review is a purely judicial power. Any erosion of the judicial power must be condemned as
unconstitutional as soon as it takes place.
XYZ notes 25
The task of tracing where the line is to be drawn between what will and what will not constitute a legislative
interference with judicial power is an almost impossible task and the courts do not attempt it unless it is
absolutely necessary to do so.
The question whether a case is triable by courts or not is answered by looking at history and seeing if such a
case has historically been heard by the court or not. If it has, then assigning this function to another body will
be unconstitutional.
Is it right to treat and describe high court as a special court?:
It is constitutionally wrong to describe and treat the high court as a special court.
Article 175(1) of the constitution provides for the structural hierarchy of the courts in a descending order of
precedence. The Supreme Court and high courts are superior because they have been established by the
constitution and the terms and conditions of the judges have been have been determined by the constitution
itself. The other courts are established by law which means that it would not be from the constitution and would
be an ordinary or sub-constitutional law. Clause 2 of 175 draws a distinction between the jurisdiction conferred
by the constitution (constitutional) and that conferred by or under a statute (statutory).
A special court established under an ordinary sub-constitutional law falls within the category of other courts.
Moreover, when the legislature confers additional jurisdiction on upon the high court, it does so under clause 2
of Article 175. It is not establishing the high court as a new court. It will be against the letter and spirit of the
constitution to describe the high court as a special court. It would also minimize the standing and importance
of the high courts.
There are many tribunals or bodies with the label ‘court’ attached to them, yet, they are not courts of law. In
United Engineering Union v. Devanayagam (1967 2 All ER 367), the Privy Council held the holder of a judicial
officer exercises judicial power but the fact that the some judicial power is exercised does not establish that the
office is judicial. Judicial power can be entrusted to someone who is not a judicial officer. If the conferred power
derives from the judicial power of the state, then the holder of the office is a judicial officer.
A distinction has to be drawn between courts of law which form parts of the judicial system of the country on
one hand and courts which are to resolve problems which arise in the course of administration of the
government. The test is whether the authority under review is required to perform the act in question as a court
proper sense of the word and whether the authority under review was performing the act judicially as a court
in the exercise of the judicial power of the state, as distinguished from executive (administrative) or legislative
power of the state.
Judicial power includes the appellate power.
The lower judiciary is a part of the judicial hierarchy in Pakistan and its separation and independence are to be
equally secured and preserved as that of the superior judiciary.
The Executive as Used in Article 175(3)
Executive, as used in the mentioned article, means the political executive as well as the administrative executive.
In Mehram Ali case it was observed that Article 175 (3) calls for the separation of the judiciary from the
executive, however, according to the definition of judiciary provided in Black’s law dictionary, judiciary is part
of the government which goes against Article 175(3). Government with a small g describes and includes the
legislative, executive and the judiciary and that is how it has been used in Black’s Law Dictionary. Government
with small g and executive are therefore not one and the same.
XYZ notes 26
Independence of Judiciary:
According to Lord Steyn, the doctrine of the separation of the judicial power from the executive and legislature
is rightly regarded as important because it is an essential constitutional safeguard of judicial independence and
the integrity of the administration of justice. It has to be observed if judicial independence is not to be put at
risk.
In a federal state, independence of judiciary stems from the logic of federalism. One of the principle functions
of the court is to adjudicate upon the legality of the exercise of powers by other functionaries of the state.
Because the judiciary has been assigned by the constitution the very important role to ensure that none of the
organs of the state acts in violation of any provision of the constitution or of any other law, the constitution also
envisaged that the judiciary shall be independent (Mehram Ali case).
Core Characteristics:
The three core characteristics of judicial independence are security of tenure, financial security and
administrative security. Financial security has both an individual and a collective dimension. Individual may be
defined to mean that the right to salary of a judge is established by law and the other two branches of
government could interfere with that right so as to affect the independence of the individual judge.
Independence of judiciary implies that a judge should be free from financial and business entanglement in
addition to independence from executive or legislative encroachment and from political pressures.
Under the Constitution of Pakistan:
The preamble and Article 2A declares that the independence of the judiciary shall be fully secured. Thus,
independence of judiciary is part of the constitution’s substantive provisions and the relevant constitutional
provisions must be construed accordingly to ensure the independence of judiciary. The Zafar Ali Shah case
asserted that independence of judiciary is a basic principle of the constitutional system of governance in
Pakistan.
Judicial independence has been recognized as universal human right.
In Pakistan:
Muhammad Sharif v. Federation and M.D. Tahir v. Federal Government concerned the enforcement of Article
175 as to the separation of judiciary from the executive. It was held that the advice of the prime minister under
Article 48(1) was not necessary for the appointment of judges of the Supreme Court. The same was held in
Muhammad
The question as to the true interpretation of Articles 177 and 193 and various other articles relating to the
appointment and transfer of judges fell directly for consideration in the Al-Jehad Trust case.
XYZ notes 27
Legislative Power
Nature of Legislative Power:
To legislate is to enact laws through legislation; this is in contrast with judge-made law which is the law made
by the judges in the exercise of the judicial power of the state by interpretive process in the performance of
their function of adjudication. Generally, the power to legislate may be described as the power to make, alter,
amend, and repeal laws, and it includes such powers as may be necessary to carry the constitution into effect.
One legislature is competent to repeal any act which a former legislature was competent to pass and one
legislature cannot abridge the powers of its succeeding legislature.
Distinguished from judicial and executive powers:
Legislative power is the power to declare what the law should be. A legislative act is the creation and
promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot
be exactly defined but it includes the adoption of a policy and the application of a general rule to a particular
case.
Essentials of Legislative Power:
“Laws are not made for particular cases but for men in general”.
In a country like England with an unwritten constitution, an act which takes away rights from one and gives
them to someone else may be considered as properly legislative as the parliament is omnipotent. However, it
would be different in a country with a written constitution as the legislature is not omnipotent there.
In Mehram Ali, a legislation was struck down on the ground that it violated the general principle of the
separation of powers and in Liaquat Hussain, it was held each of the three limbs of the state enjoys complete
independence in their own sphere.
Retrospective Legislation:
If there is power to legislate on a matter, that power includes the power to legislate retrospectively unless the
constitution provides otherwise.
The power to legislate also includes the power to validate (Aticle 269 of the Constitution).
Legislative Power to Delegate:
Federal law is law made by or under the authority of Parliament and provincial law means a law made by or
under the authority of the Provincial Assembly in Article 260 of the Constitution. The words “under the
authority” of Parliament predicate that the legislature can delegate the power to make subordinate legislation.
Some legislative functions cannot be delegated.
The Pakistan Constitution has expressly granted in each of the legislative lists in the Fourth Schedule the power
to legislate on matters incidental or ancillary to any matter enumerated in this part.
Vesting of Legislative Power and its Exercise:
Bicameralism and Unicameralism:

XYZ notes 28
The legislature at the Centre is bicameral and in the provinces unicameral. At the Centre, legislative power vests
in the parliament which consists of the president and the national assembly and the senate. Members are
elected in the two houses. The president is not a member of either house; he is a part of the parliament only in
the sense that laws passed by the legislature are presented to him so that he may exercise his right of giving or
withholding his assent.
Bills:
Under Article 70(1) of the constitution, a Bill with respect to any matter may originate in either house and if it
is passed by the house in which it originated, it will be transmitted to the other house, and if the Bill is passed
without amendment by the other house also, it shall be presented to the president for assent.
Moulvi Tamizuddin Khan case and Usif Patel case are authorities for the view that a Bill, whatever its nature
does not become law unless it is assented to by the president or as the case may be, by the governor.
Law-making by ordinances:
The power to make and promulgate ordinances is a legislative power and it is exercised by the political
executive. Under Article 89, and 128, an ordinance shall have the same force as an act of parliament. It also has
to be placed before the parliament or as the case may be, the provincial assembly. When it is so placed, it
becomes a bill and the parliament or the provincial assembly can accept or reject it. If the ordinance is not
placed before any assembly, it cannot be re-promulgated.
When an ordinance is promulgated, the national assembly must not be in session and circumstances exist which
render it necessary to take immediate action. The ordinance promulgated by the president is only a stop gap
arrangement and a temporary measure.
XYZ notes 29
Fundamental Rights and Principles of Policy

1 . Nature, Importance of Fundamental Rights
Violation of a fundamental right is the most frequently used ground for invalidating a state action, legislative
or executive. Part 2 of the constitution of Pakistan deals with them; its chapter 1 is titled ‘Fundamental
Rights’ and its articles 9 to 28 enumerate the rights which are guaranteed by the constitution. Chapter 2 is
titled ‘Principles of Policy’ and consists of articles from 29 to 40.
There are number of rights. One of them is fundamental rights. Others are universal, inalienable, natural etc.
Natural rights are possessed by virtue of being a man or a woman. These rights are not given by constitution
and laws. These are inherent in the person. Universal rights are rights which everyone has regardless of where
a person lives, sex, race etc. Inalienable rights can’t be transferred like right to vote. Fundamental rights are
granted, guaranteed and protected by the constitution.
What is the difference between fundamental rights and principles of policy?
Fundamental rights are enforceable by courts but principles of policy are not. The non-enforceability of
Principles of Policy in courts has been enshrined in the constitution. Article 30 (2) states, “The validity of an
action or of a law shall not be called in question on the ground that it is not in accordance with the Principles
of Policy, and no action shall lie against the State or any organ or authority of the State or any person on such
ground”. There has been no controversy in Pakistan regarding this. In India, a controversy emerged when
courts gave principles of policy the status equivalent to that of the fundamental rights. Parliament had tried to
change this by bringing amendments but still hadn’t succeeded.
In State of Kerala v M. M. Thomas AIR 1976 SC 490, 548 Fazl Ali said, “In view of the principles adumbrated by
this Court it is clear that the directive principles form the fundamental feature and the social conscience of the
Constitution and the Constitution enjoins upon the State to implement these directive principles”.
Government tried to change this by introducing amendments in the Constitution but the situation remained
unchanged as evident by the recent judgments of the Supreme Court.
In Jacob v Kerala Water Authority 1991 1 SCC 28, 41, it was observed that, “the preamble of our Constitution
obligates the State to secure to all its citizens social and economic justice, besides political justice. In
furtherance of these promises certain fundamental rights were engrafted in part 3 of the constitution… After
extending these guarantees, amongst others, the constitution-makers proceeded to chart out the course for
the governance of the country in part 4 of the Constitution. These principles reflect the hopes and aspirations
of the people. Although the provisions of this part are not enforceable by any court, the principles laid down
therein are nevertheless fundamental in the governance of the country and the state is under an obligation to
apply them in making laws.
Thus, the preamble promises socio-economic justice, the fundamental rights confer certain judiciable socio-
economic rights and the Directive Principles fix the socio-economic goals which the state must strive to attain.
These three together constitute the core and conscience of the Constitution”.
In State of Hincahal Pradesh v Umed Sharma AIR 1986 SC 847, the Supreme Court ruled that a) the court can in
a fit case direct the executive to carry out the directive principles of the Constitution and b) when there is
inaction or action by the executive, the judiciary must interfere.
XYZ notes 30
In Pakistan the relation between fundamental rights and principles of policy has been made complex by the
judgment of Benazir Bhutto v Federation of Pakistan PLD 1988 SC 416, 489. In the view of Muhammad Haleem
CJ Articles 3, 37 and 38 of the Constitution “juxtapose to advance the cause of socio-economic principles and
should be given a place of priority to mark the onward progress of democracy”. These provisions become in an
indirect sense enforceable by law and thus change the relation between Fundamental Rights and Principles of
Policy.
When Incorporated in a Constitution
If there is no written constitution like UK fundamental rights can be abridged by the Parliament. Lord
Macmillan, in Liversidge v Anderson (1941) 3 All ER 338, 370, said, “Right itself is the gift of law and as Magna
Carta recognizes may by the law be forfeited or abridged”. However, in a written constitution, this is not the
case. Rights are not possessed at the will of legislature or executive. Article 8 expresses this position by
stating, “The State shall not make any law which takes away or abridges the rights so conferred and any law
made in contravention of this clause shall, to the extent of such contravention, be void”.
Pakistan has followed American Bill of Rights model by incorporating these rights in the text of the
constitution.
The purpose of these Rights
The purpose of fundamental rights, so observed by Justice Jackson in West Virginia State Board of Education v
Barnette 319 US 624 “was to withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the
courts. One’s right to life, liberty and property, free speech, a free press, freedom of worship and assembly
and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”.
In Hurtado v California 110 US 516, it was stated “The fundamental rights and freedoms as enshrined in a
written constitution are “limitations upon all the powers of government, legislative as well as executive and
judicial”. In Muhammad Nawaz Sharif v Federation of Pakistan PLD 1993 SC 473, 557, Chief Justice Naseem
Hassan Shah said, “Constitutional guarantees are often couched in permissive terminology, in essence they
impose limitations on the power of the State to restrict such activities”. Chief Justice went on to say,
“Fundamental rights in essence are restraints on the arbitrary exercise of power by the State in relation to any
activity than an individual can engage in”.
Thus the object of guaranteeing the fundamental rights by entrenching them in the constitution, with an
express prohibition against legislative interference with these rights read with the provisions in Article 199,
clause (2) and Article 184, clause (3) of the Constitution for the enforcement of these rights by means of
judicial review, clearly is that these rights are to be paramount to ordinary law.
Features of fundamental Rights
 These are essential for the existence of a political society.

 These are necessary for human dignity.
 These have the guarantee of the supreme law of the land. Guarantee does not mean protection on
paper. Soviet Union had fundamental rights but these were not enforceable and were pieces of
decoration. There were no courts for their enforcement.
XYZ notes 31
Interpretation of Fundamental Rights
Interpretation of constitutional provisions guaranteeing fundamental rights provides an excellent example of

the principle that a constitution should be interpreted liberally. In Jibendra Kishore v Province of East Pakistan
the fundamental right under consideration was the right to profess religion and Muhammad Munir CJ said, “I
consider it to be a fundamental canon of construction that a Constitution should receive a liberal
interpretation in favor of the citizen, especially with respect to those provisions which were designed to
safeguard the freedom of conscious and worship”.
Fundamental Rights and their Penumbras
In Muhammad Nawaz Sharif Case PLD 1993 SC 473, the National Assembly was dissolved by the President.
Action was challenged in Supreme Court under 184 (3), seeking the enforcement of the fundamental right of
freedom of association enshrined in article 17 of the constitution. The objection was raised that Article 17
merely guaranteed the right to form a political party and the right to be a member of one. It was held by
Nasim Hasan Shah, CJ, that the basic right to form or be a member of political party “comprises the right of
that political party not only to form a political party, contest election under its banner but also, after
successfully contesting the elections, the right to form the government if its members, elected to that body,
are in possession of the requisite majority. The government of that political party so formed must implement
the programme of a political party which the electorate has mandated it to carry into effect. Any unlawful
order which results in frustrating this activity, by removing it from office before the completion of its formal
tenure would, therefore, constitute an infringement of this fundamental right”. Justice went on to write,
“Basic or fundamental rights of individuals which presently stand formally incorporated in the modern
constitutional documents derive their lineage from and are traceable to the ancient Natural Law. With the
passage of time and the evolution of civil society great changes occur in the political, social and economic
conditions of society. There is, therefore, the corresponding need to re-evaluate the essence and soul of the
fundamental rights as originally provided in the Constitution. They require to be construed in consonance with
the changed conditions of the society and must be viewed and interpreted with a vision to the future. Indeed
this progressive approach has been adopted by the Courts in the United States and the reason given for doing
so is that: ‘While the language of the Constitution does not change, the changing circumstances of a
progressive society for which it was designed yield a new and fuller import to its meaning’ (Justice Frankfurter
in Sweezy v New Hampshire 354 US 234).
In Farooq Ahmed Khan Leghari v Federation of Pakistan PLD 1999 SC 57, 196, Ajmal Mian, CJ, put the same
idea saying that ‘all efforts should be made to preserve and to enlarge the scope of the fundamental rights
while interpreting constitutional provisions’. This approach of treating peripheral rights or rights of penumbra
as basic rights is traceable to Griswold v Connecticut 381 US 479. Justice Douglas said in this case, “Previous
cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance”. The term penumbra is borrowed from astronomy and
denotes area between full sunlight and complete darkness. Penumbras are rights between explicit recognition
and complete silence.
Positive and Negative Obligations arising out of fundamental rights
Fundamental rights are directed to the state. This is clear from Article, read with Article 7 which defines the
State to be legislature and executive. Judiciary is not part of State for the purposes of this chapter. Judiciary
XYZ notes 32
has been given the responsibility of enforcing fundamental rights so it will be anomalous if it is considered part
of the state.
The question in this context is whether fundamental rights raise positive obligations on the part of the state.
American approach is that they do not. In DeShaney 489 US 189, 103 L Ed 2d 249, Chief Justice Rehnquist said,
“But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and
property of its citizens against invasion by private actors. The Clause is phrased as limitation of the State’s
power to act, not as a guarantee of certain minimal levels of safety and security… Our cases have recognized
that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid
may be necessary to secure life, liberty or property interests of which the government itself may not deprive
the individual”. The European Court of Human Rights took a different view in, A v UK (1999) 27 EHRR 611, the
court held, “the obligation of the High Contracting Parties under Article 1 of the Convention to secure to
everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with
Article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not
subjected to torture or inhuman or degrading treatment or punishment, including such ill treatment
administered by private individuals”. The effective measures should be taken to prevent serious damage to life
and violation of other fundamental rights seems to have been recognized in Shehla Zia case (PLD 1994 SC 693).
Can They be Waived?
In Government of Pakistan v Akhlaq Hussain PLD 1965 SC 527, Kaikaus said, “Citizens of Pakistan cannot
contract themselves out of the various fundamental rights which the Constitution grants them”.
Fundamental Rights may or may not be absolute. Absolute rights cannot be infringed like torture. Non-
absolute are subject to law or reasonable restrictions like freedom of speech. Meaning of subject to law was
discussed in Rivinder Kishor v Province of East Pakistan PLD 1967. Article 20 of the constitution was under
discussion which granted freedom of religion. Petitioners argued that because right it subject to laws, so they
can be taken away. CJ Munir wrote, “The very concept of fundamental right is that it cannot be taken away”.
Violation of Fundamental Right
Meaning of word ‘void’ in article 8, void has been borrowed from Marbury. Void can mead void ab initio which
means that the law did not come into being. However, till NRO case law was that void did not mean void ab
initio. In Mehr Ali Khan Case PLD 1956 SC 387, it was held that void does not mean void ab initio. In Mudoodi
case PLD 1964 SC 673 it was held that when it is said that law is void it does not mean that law is void ab initio.
It remains on statute books but it is not enforced. NRO case reversed this pattern without giving sufficient
consideration to the subject.
XYZ notes 33
Doctrine of Precedent
In UK
Till 1966, House of Lords of England held itself bound by its own previous decisions. This was so held in London
County Council (1898) AC 375. It was founded on immemorial practice and the justification given by the Earl
of Halsbury with whom the other Lords concurred. He said, “…the disastrous inconvenience-of having each
question subject to being reargued and the dealings of mankind rendered doubtful by reason of different
decisions, so that in truth and in fact there would be no real final Court of Appeal”. In 1966, the House of Lords
modified its approach of strictly adhering to its own precedents. In so doing, the House stated, “Their
Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law
and its application to individual cases. It provides at least some degree of certainty upon which individuals can
rely in the conduct of their affairs as well as a basis for orderly development of legal rules. Their Lordships
nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law. They propose, therefore, to modify their present practice
and while treating former decisions of this House as normally binding, to depart from a previous decision
when it appears right to do so”. The recent case of Kleinwort Ltd v Lincoln Council (1998) 4 AELR 513 is an
example of this approach. Law was that money that had been wrongly paid to government cannot be claimed.
This was the law for centuries. This law was changed in this case.
In US
As regards the law as it has developed in US, “Stare decisis is a cornerstone of our legal system, but it has less
power in constitutional cases, where, save for constitutional amendments, this court (Supreme Court) is the
only body able to make needed changes” Webster-492 US 490. American Supreme Court has been over ruling
precedents when it felt the need to do so.
Law Declaring or Law Making
The declaratory theory of judicial decisions is to be found in a statement by Sir Matthew Hale over 300 years
ago viz that the decisions of the court do not constitute the law properly so called, but are evidence of the law
and as such ‘have a great weight and authority in expounding, declaring and publishing what the law of this
Kingdom is”. Blackstone stated that the duty of the court was not to pronounce a new law but to maintain and
expound the old one”. Thus, the theoretical position has been that judges do not make or change law, they
discover and declare a law. According to this theory when an earlier decision is over-ruled the law is not
changed: its true nature is disclosed, having existed in that form all along. This theoretical position is, as Lord
Reid said, ‘a fairy tale’ in which no one any longer believes. In truth, Judges make and change the law. It is
however important to bear in mind that while judges do make and change the law, they do not legislate and
phrases such as ‘judicial legislation’ need to be avoided.
The decisions of the courts serve two purposes.

Private: decide conflict between parties
Public: make law-doctrine of precedent
XYZ notes 34
In Cooper v Aaron it was held that decisions of the Supreme Court become the supreme law of the land. In Al-
Jihad Trust case it was stated that the interpretation of the provisions of the constitution by Supreme Court
become part of the constitution.
Categories of Precedent
Persuasive Precedent: Persuasive precedents are in fact no precedents. These precedents are not binding. In
Pakistan, decision of one High Court not binding on other High Courts but does have a persuasive value.
Binding Precedent: It is with this category that the doctrine of precedent is concerned. A binding precedent is
by law or convention or practice binding upon a class of courts. If a judge of the later class finds a directly
applicable precedent decided by a court to which he must defer, he must give judgment accordingly. In this
connection, two frequently used terms are ‘Stare Decisis’ and ‘ratio decidendi’.
Stare Decisis
Stare Decisis means to abide by, or to adhere to, decided cases. It is a doctrine under which a deliberate or
solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its
determination, is an authority, or binding precedent, in the same court, or in other courts of equal or lower
rank in subsequent cases where the very point is again in controversy. It is a judge made doctrine which has
been created for certainty. It has been incorporated in constitution via articles 189, 201 and 203 (gg) of the
Constitution.
Ratio Decidendi
The dictionary meaning of the expression is “the ground or reason of decision. The point in a case which
determines the judgment”(Black’s Law Dictionary, 6th Edition). In Pir Bakhsh v Chairman Allotment Committee
PLD 1987 SC 145, it was said, “In a controversy raising a dispute inter parties, the thing adjudged is conclusive
as between the parties both on questions of fact and law, but as to what the Court decides is generally the
ratio decidendi or rule of law for which it is the authority. It is the ratio decidendi which is applicable to
subsequent cases presenting the same problem between the third parties not involved in the original case nor
will either of the original parties be bound in a subsequent dispute with a third party”.
Obiter dicta
What is the distinction between Ratio Decidendi and Obiter Dicta? What was necessary for the decision of the
issue in the case is ratio decidendi and is binding but what was said ‘by the way’ and was entirely unnecessary
for the decision of the case or what is a mere gratuitous statement of the law is obiter dicta and is not
binding.
Dissenting Judgment
A dissenting does not constitute the decision of the court and is therefore not binding. But that does not mean
that it has no value. A dissenting judgment is of importance in two distinct ways. First, when read together
with the judgment of the majority, it makes it plain just how far that majority has gone in changing, or refusing
to change the law. Secondly, a dissenting judgment may be important as a starting point for future
developments. Charles Evans Hughes Chief Justice of America said, “Particularly a dissent in a court of last
XYZ notes 35
resort is an appeal to the brooding spirit of the law, to the future intelligence of a future day, when a later
decision may possibly correct the error into which the dissenting judge believes the court to have been
betrayed”. Justice Holmes was famous for his dissents, many of which later became law. Brown v Board of
Education (347 US 483) which outlawed school segregation had over ruled Plessy v Ferguson (163 US 537) and
adopted Justice Marshall Harlan’s eloquent decision in that case. In the English jurisdiction, Lord Atkin’s
dissent in Liversidge v Anderson (1942) AC 206 3 AELR 338, and Denning’s dissent in Candler v Crane (1951) 2
KB 164 are the example which later became the law of the land.
When Can the Precedent be Over Ruled?
Dosso was over ruled by Asma Jilani case. While over riding Dosso, Hamood-ur-Rehman CJ said, “…but in spite
of judge’s fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail
to recognize that it is equally important to remember that there is need for flexibility in the application of this
rule, for law cannot stand still nor can we become mere slave of precedents”. Justice concluded that the rule
of stare decisis does not apply with same strictness in criminal, fiscal and constitutional matters where the
liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.
XYZ notes 36
Interpretation
Power to interpret derived from where?
The power to interpret is derived from the judicial power to decide cases. Judicial power is the power to
decide and that includes the power to interpret. The core function of a judge is to decide the case by applying
the law to its facts. That necessarily involves interpretation of the law in order that it may be so applied. Lord
Diplock in Chokolingo v AG of Trinidad and Tobago (1981) 1 AELR 244 said, “It is an exercise of judicial power
of the State and consequently a function of the Judiciary alone to interpret the written law…”. CJ Marshall
said, “Those who apply the rules to a particular case must expound and interpret the law”. Judicial review has,
said Cornelius CJ in Maudoodi case (PLD 1964 SC 673) “developed in the hands of the courts which have the
power of final interpretation of statutory laws…”. When court is comparing law with the constitution to
determine its validity, it will naturally interpret both the law and the constitution.
The process of adjudication is to find facts, find law and apply law to the facts. It is this third state in which
interpretation is done.
When Does the Question of Interpretation Arise?
When the language is not only plain but admits of one meaning the task of interpretation can hardly be said to
arise. It is not allowable, says Vattel, to interpret what has no need of interpretation. Such language best
declares without more the intention of the law giver and is decisive of it (Cited in Maxwell of ‘Interpretation of
Statutes’). The question of interpretation arises only when the phrase is open to more than one reasonable
meaning. Thus ambiguity is the ground due to which the courts get the power to interpret. Ambiguity is, in the
field of interpretation, a term of art; a provision is ambiguous if reasonably open, on orthodox rules of
construction, to more than one meaning (R v Secretary of State 2001 1AELR 195).
The principles of interpretation, with few exceptions, are not to be found in the Constitution or in any statute.
Some of the rules of interpretation in the interpretation enactments, such as the (English) Interpretation Act
1978, (Pakistan) General Clauses Act 1897 and the provincial enactments on the same lines. The General
Clauses Acts do not, by their own force, apply to the interpretation of the Constitution, but some of the rules
embodied in them have been included in the Constitution of Pakistan, Articles 261 to 264.
Hamilton in Federalist Paper No. 83 wrote that the principles of legal interpretation are principles of common
sense adopted by the courts in the construction of the laws. So far as valid, they are what Justice Holmes
called them-axioms of experience (Boston Sand v US (1928) 278 US 41).
Difference between Constitutional and Statutory Interpretation
There is a great difference between interpreting ordinary laws and constitution. The task of expounding a
constitution is crucially different from that of constructing a statute. Dickson J said in Hunter v Southern Inc
(1984) 2 SCR 145, “A statute defines present rights and obligations. It is easily enacted and as easily repealed.
A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing
framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights,
for the unremitting protection of individual rights and liabilities. Once enacted, its provisions cannot easily be
repealed or amended. It must, therefore, be capable of growth and development over time to meet new
XYZ notes 37
social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the
Constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund
expressed this idea aptly when he admonished the American Courts not to the read the provisions of the
Constitution like a last will and testament lest it become one”.
What did Marshall mean when he said, “we must not forget that it is a Constitution we are expounding”?
Hughes J explained it in Home Building and Loan Association v Blaisdell, “It is no answer to say that this public
need was not apprehended a century ago, or to insist that what the provisions of the Constitution meant to
the vision of that day it must mean to the vision of our time. It by the statement that what the Constitution
meant at the time of its adoption it means today, it is intended to say that the great clauses of the
Constitution must be confined to the interpretation which the framers, with the conditions and outlook of
their time, would have placed upon them, the statement carried its own refutation. It was to guard against
such a narrow conception that CJ Marshall uttered the memorable warning: We must never forget that it is a
constitution we are expounding, a Constitution intended to endure for ages to come, and consequently, to be
adapted to the various crises of human affairs”.
Justice Holmes in 245 US 418 wrote, “A word, particularly when used in a Constitution, is not a crystal,
transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content
according to the circumstances and the time in which it is used”. While the language of the Constitution, so
called Justice Frankfurter in Sweezy, “does not change, the changing circumstances of a progressive society for
which it was designed yield new and fuller import to its meaning”. As Chinese say, “The words stop but the
sense goes on”.
Theories of Constitutional Interpretation
There are different theories of constitutional interpretation.
1. Textualism
The words of a text are of paramount concern in this approach. Constituionalism begins and ends with the
text. The desire of freedom from the text gives judges the power to do what is not their duty. Judges should
not legislate under the guise of interpretation.
2. Purposive Interpretation
Courts have abandoned a strict constructionist view of interpretation which required them to adopt the literal
meaning of text. The courts now adopt the purposive approach which seeks to give effect to the true purpose
of legislation. Lord Roskill in Anderson v Ryan (1985) 2 AELR 355 said, “…Statutes should be given what has
become known as a purposive construction, that is to say, the courts should when possible identify the
mischief which existed before the passing of the statute and then if more than one construction is possible,
favor that which will eliminate the mischief so identified”.
3. Informed Interpretation
Even in the interpretation of statutes, the courts now adopt what a modern writer has called “informed
interpretation rule”. That rule requires that “in the construction of an enactment, due attention should be
paid to the state of the law before the Act was passed, the history of its passage and the events subsequent to
XYZ notes 38
its passing” (Francis Bennion on ‘Statutory Interpretation’). Thus in England the recent case of Pepper v Hart
has done away with the long established traditional view that Parliamentary material cannot be used by the
courts.
4. Structuralism
The doctrine of Separation of Powers is kept in view while interpreting.
Resolving Conflicting Constitutional Provisions
Judicial review is concerned with resolving conflict between constitution and statute. But how do courts
resolve conflicting constitutional provisions? “Although apparently conflicting provisions will be reconciled
whenever possible, in case of conflict in the provisions of the Constitution, if one or other must yield, the one
which, under the law, is the lesser right will yield” (Corpus Juris Secundum, V 16, pg 97). “It is sometime said
that where there is an irreconcilable inconsistency between two provisions in the same statute, the latter
prevails, but this is doubtful, and the better view appears to be that the courts must determine which is the
leading provision and which the subordinate provision, and which must give way to the other” (Halsbury’s
Laws of England, ED 4, Vol 49, PG 532). These principles were noticed in Shahid Nabi Malik v Chief Election
Commissioner PLD 1997 SC 32 and in Wukala Mahaz v Federation of Pakistan PLD 1998 SC 1263.
Indian Judiciary has developed Basic Structure Doctrine as a way of resolving conflict between conflicting
constitutional provisions.
When there is a conflict between two provisions of a Constitution, in the performance of their constitutional
duty to interpret, first try to harmonize them (President’s Special Reference PLD 1957 SC 219); they make
efforts to resolve the same by reconciling it (Al-Jihad Trust Case). But if the two provisions are irreconcilable,
then, they decide, again in the performance of their constitutional duty to interpret, which of the conflicting
provisions will prevail. In doing so, they do not strike down the constitutional provision which is not to prevail,
as void (Sajjad Ali Shah CJ in PLD 1996 SC 324).
XYZ notes 39
Jurisdiction
The Concept of Jurisdiction
Jurisdiction was defined by Greek philosophers. Originally on grounds of religion, they thought that every
person or thing has a particular sphere and to overstep that is injustice.
Jurisdiction lies at the foundation of all legal proceedings. It must be present or the proceeding is void. CJ
Marshall said in Cohen v Virginia 19 US (16 Wheat)264 that “we have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not given. The one or other would be treason to the
Constitution”. Marshall said in Exparte McCardle 74 US 506, “…the judicial duty is not less fitly performed by
declining un-granted jurisdiction than in exercising firmly that which the Constitution and laws confer”.
Bracton defined ‘jurisdiction’ to be authority to judge or declare the law between parties brought into court;
and it was said by Ryan CJ that this definition had never been bettered and probably never would be and is of
universal authority.
Distinction between Judicial Power and Jurisdiction
In the context of a written constitution, particularly in the study of constitutional interpretation, it is important
to understand the distinction and the relationship, between ‘judicial power’ and ‘jurisdiction’. Jurisdiction
expresses the concept of the particular res or subject matter over which the judicial power is to be exercised
and the manner of its exercise. In Fauji Foundation v Shamin-ur-Rehman PLD 1983 SC 457, it was noted that
jurisdiction denotes the authority for the courts to exercise judicial power.
Constitution has also incorporated this idea in Article 175 (2) which states, “No court shall have any
jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”.
Its Origin
The word ‘jurisdiction’ is derived from the Latin word ‘jurisdictio’ which is in turn derived from the words jus,
juris, law, and diction, from dico, to pronounce. It means to pronounce the law; I speak by the law (Jurisdiction
of Court by Horace Hawes p 1).
Jurisdiction: Narrow Original Sense and Extended Sense
Jurisdiction, in its narrow original sense, means that the court or tribunal is entitled to enter on the inquiry in
question or to entertain a suit or other proceedings. The question of jurisdiction, when the expression is used
in that sense, is determinable at the commencement, not at the conclusion, on the enquiry. Thus, an act is
without jurisdiction when it is done by a person or authority not competent in law to enter upon the enquiry
or to entertain the proceedings resulting in the act complained of. There is then the extended sense of
jurisdiction; a tribunal or authority may have the jurisdiction to enter upon an enquiry or to entertain a
proceeding, yet, it may exceed its jurisdiction or go outside its jurisdiction during the course of the proceeding
by doing something which it is not authorized by law to do or by making an order which it is not authorized by
law to make. That is what is called exercise of jurisdiction. It is well settled by authority that absence or want
of jurisdiction is determinable at the commencement, not at the conclusion, of the enquiry and excess of
XYZ notes 40
jurisdiction is determinable during the course of or at the end of the enquiry (Caltex Oil v Ashiq Muhammad
Faiz PLD 1990 Lah. 370).
The concept of jurisdiction, both in its original and extended sense, has been well recognized; it has been well
understood since the classic case of Anisminic Ltd. The authority of the case as far as the concept of
jurisdiction is concerned has not been shaken and was affirmed in McC v Mullan and was applied in Williams v
Bedwellty Justice.
Source of Jurisdiction
The written constitution is the source from which all governmental power emanates; it defines its scope and
ambit so that each functionary should act within his respective spheres. The essential point is that the
Constitution is the paramount law and the authority which different organs created by it exercise is derived
authority, that is derived from the Constitution (Federation v Saeed Ahmad PLD 1974 SC 151). CJ Marshall
said, “This government is acknowledged by all to be one of enumerated powers. The principle that it can
exercise only the powers granted to it would seem to be too apparent…” McCulloch v Maryland 17 US.
The principle that courts cannot have the authority which had not been conferred upon them by constitution
or law was expressed in Shahnaz Begum Case PLD 1971 SC 677. In this case, a High Court Judge took suo moto
and asked IG of police to produce before him all the investigation papers relating to the case of Shahnaz
Begum. It was held that High Courts do not have power of taking suo motos. It was reiterated that as far as
High Courts are concerned, they have no other powers apart from those conferred upon them by the
Constitution or by any law.
Inherent power in not conferred by any law. There are some well recognized instances of inherent powers.
The first is the power to review an order which was delivered without jurisdiction. The second is the power in
every authority to review or recall any decision that was obtained from it by fraud. The distinction between
inherent and ancillary or incidental power is that while inherent power requires no authorizing provision, that
is to say it is not conferred by law, an ancillary or incidental power is conferred by law. Unlike inherent
powers, implied powers are statutory powers.
XYZ notes 41
Executive Power
Great leadership is a form of art. There has been a long spread belief in US that government needs
businessman to run the government, someone who has proven that he can manage things. Management is
one thing, leadership is another. Manager’s duty is to do the things right and leaders duty is to do right things.
James Madison, known as the father of American Constitution, identified the central dilemma of
constitutionalism: how to empower the government sufficiently for its tasks and at the same time, how to
limit it from overreaching the individual. He described this most elegantly in Federalist Paper No. 51: “It may
be a reflection on human nature that such devices should be necessary to control the abuses of government.
But what is government itself but the greatest of all reflections on human nature? If men were angels, no
government would be necessary. If angels were to govern men, neither external not internal controls on
government would be necessary. In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control the governed; and in the next place
oblige it to control itself”.
Like legislative and judicial power, executive power is also a constitutional concept. While the judicial power is
administration of justice in accordance with law, the executive power is administration of government in
accordance with law. In the classic words of CJ Marshall “the legislature makes, the executive executes and
the judiciary construes the law”.
Alexander Hamilton in Federalist Paper No. 70, articulated the importance of crafting a strong executive as
follows:
“Energy in the executive is a leading character in the definition of good government. It is essential to the
protection of the community from foreign attacks; it is not less essential to the steady administration of the
laws; to the protection of property against those irregular and high handed combinations which sometimes
interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy”.
Source
The American Constitution provides an interesting example. By its Article 2 that Constitution provides that
“The executive power shall be vested in a President of the United States of America”; and that “he shall take
care that laws be faithfully executed”. The article by stating that the President is to execute the laws refutes
the idea that he can be a law maker.
In America, there are two rival conceptions about the executive power. One is literal theory and other is
stewardship theory. Literal theory is that the President is permitted to act only when authorized to do so by a
grant of authority explicit or fairly implied from the Constitution or a statute. Chief Justice Taft, who has
served both as a President and the Chief Justice was the first to portray the office in these terms in Myers v US
272 US 52. The ruling and firmly established principle, as regards the executive power in respect of internal
affairs, “is that the powers which the general government may exercise are only those specifically enumerated
in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated
powers” (Carter v Carter 298 US 238). In Steel Mills Seizure Case, Justice Black said, “Not only does the nature
of executive authority negate the power to make laws, but also all executive authority must stem either from
an act of Congress or from the constitution itself”. Judge Pine of the Federal District Court declared the seizure
XYZ notes 42
order unconstitutional. He observed that there was no express grant of power in the Constitution authorizing
the President to direct this seizure. There is no grant of power from which it reasonably can be implied. There
is no enactment of Congress authorizing it. It was held that no inherent power existed in the President; that
the jurisdiction of the President must be justified and vindicated by affirmative constitutional or statutory
provision, or it does not exist.
In US v Nixon 418 US 683, the District Court issued subpoena directed at President Nixon to produce certain
tape recordings of conversation between the President and his advisors. The President claimed absolute and
urged two grounds in its support. The first ground was the need for protection of communications between
high government officials and those who advise and assist them in the performance of their duties and the
second rested on the doctrine of separation of powers. The Supreme Court reaffirmed the holding of Marbury
that “it is emphatically the province and duty of the judicial department to say what the law is” and held that
to read Article 2 powers of the President as providing an absolute privilege as against a subpoena essential to
the enforcement of criminal statutes on no more than a generalized claim of the public interest in
confidentiality of non-military and non-diplomatic discussions would upset the constitutional balance and a
workable government and gravely impair the role of courts under Article 3.
In Syed Sharif-ud-Din Pirzada v Federation of Pakistan (PLD 1973 Karachi 132), Tufail Ali Rehman CJ held,
“Now it is elementary in our system of law that the executive has no power except such as has been given to it
by law, and that anything done, which in any manner adversely affects a citizen or any other person for the
time being in the country, must have the warrant of power duly conferred by law and would otherwise be
illegal”.
In Mian Muhammad Nawaz Sharif case (PLD 1993 SC 473), it was held, “In view of the express provisions of
our written constitution detailing with fullness the powers and duties of various agencies of the government
that it holds in balance there is no room of any residual or enabling powers inhering in any authority
established by it besides those conferred upon it by specific words”.
The other is stewardship theory, championed by Theodore Roosevelt. He declined to adopt the view that what
was imperatively necessary for the nation could not be done by the President, unless he could find some
specific authorization to do it. “My belief was that it was not only his right but his duty to do anything that the
needs of the nations demanded unless such action was forbidden by the Constitution or by the laws”. The rule
of thumb by which such activist Presidents operate is that the Chief Executive is empowered to act unless
there is a specific prohibition on doing so contained in either the Constitution or a statute.
US has system of single executive and President has broad powers in matters of defense and international
relations. He also has the power to veto bills. Pakistan has the system of dual executive.
President is head of State. He has many powers. Chapter 1 of part 3 (Articles 41-49) deals with President. In
Pakistan, impeachment of President is done by 2/3 of Parliament. Parliament does not need to give reasons
for the impeachment. In US, there is proper hearing. Impeachment is started by House of Representatives,
trial is done by Senate presided by Chief Justice. Article 243 of the Constitution gives rise to a contradiction.
Armed forces are under the control of Federal Government but President is the Commander-in-Chief of these
forces.
Constitutional History
XYZ notes 43
Our constituent assembly was unable to give constitution. In 1952, Governor General dissolved the assembly.
Moulvi Tameezudin challenged it in Sind Chief Court. Chief Court declared the action of Governor General to
be invalid and assembly to be restored. This decision was challenged in Federal Court. Federal Court reversed
the decision. One issue in this case was whether the consent of Governor General was necessary for the
conversion of bills into laws? Sind Chief Court decided assent was not necessary. Federal Court held otherwise.
It was held that unconstitutional law is incapable of conferring jurisdiction and creating rights and liabilities.
Doctrine of necessity was not introduced in this case.
Governor General by one ordinance validated all laws. This act was again challenged in Yusuf Patel Case. It
was argued that power to validate constitutional laws did not vest in Governor General. Only those can
validate laws who can make them. Governor General could not make law, so he could not validate it. There
was again stale mate. Governor General asked Federal Court what to do. It was in this reference case that the
doctrine of necessity was introduced not that of Kelsen but a general legal maxim.
Lord Diplock invoked this maxim of necessity which is a first maxim in Dome’s book. As a result of this
reference, new constituent assembly was formed which formulated the constitution of 1956. Extreme
Parliamentary government established by this constitution. This constitution was abrogated in 1958. Dosso
decision came as a result of this abrogation. Kelsen’s doctrine of necessity was introduced in this decision.
Ayub framed 1962 constitution which established Presidential form of government. Interim constitution of
1971-73 was also Presidential. The system brought by 1973’s constitution is parliamentary system.
Cabinet
The concept of cabinet came from England. All matters were decided by Privy Council. King Charles 2 broke
this tradition and established cable (French word- cabinet). Both words were used in derogatory sense.
Matters went to Privy Council after being discussed in cable.
Cabinet is made up of ministers which are answerable to Parliament. House of Commons is very powerful but
is dominated by cabinet. In 1911, tension arose between two houses. House of Commons will pass the bill but
House of Lords will bar it. House of Commons passed Parliament Act 1911 which stated that if House of
Commons followed a prescribed procedure, House of Lords will be excluded. Same sort of act was Parliament
Act 1949.

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XYZ notes 1

Significance and Implications of a Written Constitution

The main forms of democracy are:

Federation with Parliamentary System

(1) Limited term

The system in Pakistan is one Constitutional, not of parliamentary supremacy

Original 1973 Constitution and subsequent changes

Is the constitution now a hybrid?

Islam as State Religion – Article 2

Distinction between Secular and Ideological State

Islam as a way of life

Federal Shariat Court

Essential Characteristics of the Rule of Law

Importance of Rule of Law

Relevant Provisions of Constitution of Pakistan

4 Right of individuals to be dealt with in accordance with law, etc.

5 Loyalty to State and obedience to Constitution and law.

248 Protection to President, Governor, Minister, etc.

Meaning of Law in ‘Rule of Law’

Distinction between Constitution and Law

Power to make Laws- Relevant Articles 141, 142, 143

Effect of Article 189, 201 – The Doctrine of Precedent

According to James Madision, writing in the Federalist No. 47,

The Concept of Judicial Power

Definition of Judicial Power:

Judicial Power in America:

Judicial Power in Pakistan:

Articles 202 and 203 read:

Attributes of Judicial Power

Is it right to treat and describe high court as a special court?:

The Executive as Used in Article 175(3)

Under the Constitution of Pakistan:

Distinguished from judicial and executive powers:

Essentials of Legislative Power:

Legislative Power to Delegate:

Vesting of Legislative Power and its Exercise:

Bicameralism and Unicameralism:

Fundamental Rights and Principles of Policy

What is the difference between fundamental rights and principles of policy?

When Incorporated in a Constitution

The purpose of these Rights

Features of fundamental Rights

 These are essential for the existence of a political society.

Interpretation of Fundamental Rights

Interpretation of constitutional provisions guaranteeing fundamental rights provides an excellent example of

Fundamental Rights and their Penumbras

Positive and Negative Obligations arising out of fundamental rights

Can They be Waived?

Violation of Fundamental Right

Law Declaring or Law Making

The decisions of the courts serve two purposes.

When Can the Precedent be Over Ruled?

When Does the Question of Interpretation Arise?

Difference between Constitutional and Statutory Interpretation

Theories of Constitutional Interpretation

There are different theories of constitutional interpretation.

The doctrine of Separation of Powers is kept in view while interpreting.

Resolving Conflicting Constitutional Provisions

Distinction between Judicial Power and Jurisdiction

Jurisdiction: Narrow Original Sense and Extended Sense

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