Judicial overreach

The Supreme Court has closely examined the concept of judicial review, activism and restraint, writes Dr Ziaullah Ranjah

Judicial overreach
In a recent judgment (Mian Irfan Bashir v The Deputy Commissioner, Lahore), the honorable Supreme Court observed that, “The role of a constitutional judge is different from that of a King, who is free to exert power and pass orders of his choice over his subjects...having taken an oath to preserve, protect and defend the Constitution, a constitutional judge cannot be forgetful of the fact that he, is first and foremost subject to the Constitution and the law.”

The petitioners challenged a notification regarding the removal of signboards and advertisements from their shops at Mall Road, Lahore before the Lahore High Court. While deciding the case, however, the court passed a direction on a different issue (wearing of helmets by motorcyclists) that was not even before the court. The court said: “…that the petrol pumps shall not fill in the petrol tanks of the motorcyclists who have not worn the helmets and in case any owner of the filling station is found to provide the petrol to those motorcyclists, the petrol pump will be sealed and heavy fine will be imposed.” The learned Division Bench (DB) of the Lahore High Court also upheld this order. The DB’s order was impugned before the Supreme Court.

The SC noted that an application by the aggrieved party is essential to invoke the constitutional jurisdiction of the high court; that the high court is not empowered to exercise suo motu jurisdiction under Article 199 of the Constitution. The SC observed that such a ban on the sale and purchase of petrol by the petrol pump owners to the motorcyclists not wearing helmets is not backed by any law or executive policy and found the impugned direction devoid of legal legitimacy. The SC emphasized that judicial overreach entails “the exercise of judicial power without any backing of the law and interfering in and encroaching on the legislative and executive domain.”

The SC closely examined the concept of judicial review, judicial activism and judicial restraint and observed that “both judicial activism and judicial self-restraint operate within the bounds of judicial legitimacy.” However, the court observed that “Judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policymaking.” The court termed such exercise of judicial review powers as ‘judicial adventurism’ or ‘judicial imperialism.’

The SC highlighted the importance of the constitutional doctrine of separation of powers and the limits of judicial review powers in a constitutional democracy. The court declared the impugned order as unconstitutional, illegal and without jurisdiction.
The SC may consider defining the scope of public interest cases and the limits of judicial review

More importantly, the SC has illuminated a unique dimension of judicial review and its nexus with fundamental rights while observing that, “The impugned direction by the High Court placing a ban on motorcyclists without a helmet to purchase petrol, loses sight of the fundamental rights guaranteed to the petrol pump owners and the motorcyclists under the Constitution.” This interpretation enriches the jurisprudence of constitutional law.

The courts interpret and uphold the constitution and protect fundamental rights through judicial review powers. Courts review the functions of the executive and the legislature to ensure that these branches do not transgress constitutionally prescribed boundaries affecting the rights of the people. The judicial review works as a check on the governmental powers. It is an effective measure that keeps the state functionaries under constitutional check and legal control.

Various jurists have understood and defined the concept of judicial review within a specific political and constitutional context. Brian Thompson, for example, defines judicial review as the authority of the judiciary to declare actions of executive and legislature void, if they fail to conform to the constitution or infringe fundamental rights. E.S. Crown stated that the judicial review is the authority of the judiciary to examine the validity and the constitutionality of the actions of the legislature and the executive. The judicial review is judicial scrutiny of the functions of the governments on the touchstone of the constitution, says S.P. Sathe. Traditionally, determining the legitimacy of governmental acts based on the constitution is called the judicial review in Pakistan.

However, Justice Mansoor Ali Shah has interpreted judicial review more creatively to bring orders of provincial judiciary about the infringement of fundamental rights, when the honourable judge stated: “The impugned direction [by the High Court] deprives the petrol pump owners of their business guaranteed under Article 18 of the Constitution and the motorcyclists of their right to mobility and right to livelihood guaranteed under Article 9 of the Constitution.”

This interpretation promotes the compliance of the doctrine of separation of powers and constitutional democracy. It also protects the fundamental rights of citizens progressively. At the same time, the SC may consider defining the scope of public interest cases and the limits of judicial review while interpreting fundamental rights by full court.

Whether one can file a public interest petition on the subjective understanding of grievance or should such a petition be based on sufficient grounds. Should fundamental rights be enforced in strict terms of the fundamental right provisions or should it be left to the subjective interpretation of a judge? The guidance of the SC on these questions will refine jurisprudence on judicial review and protect fundamental rights in Pakistan.

The writer is an advocate in the Supreme Court of Pakistan