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............................................................................................................................. Description This is a book on Judicial Review, contextually considered. The context is a written constitution. Under an unwritten constitution, as in England, judicial review, till recently was considered to be the essential core of administrative law, and the purpose of judicial review was "to enforce the legal limits of public-and in particular executive-power." According to Dicey, who "remains the prophet of this mode of thinking", the parliament has "under the English constitution the right tomake or unmake any law, and further, that no person or body is recognized by the law ofEngland as having the right to override or set aside the legislation of the Parliament." Under the written constitution, such as in the United States of America, India and Pakistan, the position is wholly different A written constitution creates limited powers in its institutions. Ever since Marbury v. Madison, it has been the firmly entrenched law that the courts in general and the Supreme Court in thelastresort have the power of judicial review, that is, the power "to decide for the government asa wholewhat the constitution means and to declare acts of other departments of government (including those of the legislature) invalid if they exceed the powers provided for them by the constitution, properly understood". This is, what according to the Greek philosophers - including Plato and Aristotle - the conception of justice is. "They thought -originally on grounds derived from religion -that each thing or person has its or his proper sphere, to overstep which is unjust". Judicial review is 'judicial power' in action; it is the practical aspect of the rule of law. To facilitate a better understanding of the power of judicial review, the book contains, besides a fairly exhaustive study of the constitutional concept of 'judicial power', a treatment of the constitutional concept of the legislative power1 and the 'executive power' of the state. And, as the judicial power is the power to decide and that includes the important power to interpret, it has also been thought necessary to include a discussion on interpretation and the doctrine of precedent. Included in the Part on interpretation is a chapter on tensions naturally arising out of the exercise of the power of judicial review. And last but not the least is the part containing a thought provoking discussion of the doctrine of state or civil necessity. ............................................................................................................................. Contents Part I - Introduction Chapter 1. Preliminary Chapter 2. The doctrine of judicial review Chapter 3. Relationship between judicial power, jurisdiction and judicial review Chapter 4. Interpretation and its relation with judicial review Chapter 5. Relationship between judicial and political branches of government Chapter 6. Is judicial review undemocratic Part II - Constitutional Context of Judicial Review Chapter 1. Significance and implications of a written constitution Chapter 2. Federation with parliamentary system Chapter 3. Islamic provisions Chapter 4. The rule of law Chapter 5. Meaning of 'law' Chapter 6. Fundamental rights and principles of policy Chapter 7. Separation of powers Chapter 8. Legislative and administrative relations between federation and provinces Chapter 9. Amendment of the constitution Part III - Judicature: Judicial Power Chapter 1. The concept of judicial power Chapter 2. Attributes of judicial power Chapter 3. courts in whom judicial power vests Chapter 4. Inquiry tribunals Chapter 6. Military courts and martial law courts Chapter 7. Independence of judiciary Chapter 8. Contempt of court Part IV - Legislative Power Chapter 1. Nature of legislative power Chapter 2. Some important legislative functions Chapter 3. Vesting of legislative power and its exercise Chapter 4. Independence of legislature Chapter 5. Questioning validity of legislative proceedings Chapter 6. Law-making by ordinances Chapter 7. Distribution of legislative powers Part V - Executive Power Chapter 1. Nature of executive power Chapter 2. Source of executive power Chapter 3. Extent of executive authority Chapter 4. Vesting of the executive power Chapter 5. Exercise of executive power Chapter 6. Cabinet and the caretaker cabinet Chapter 7. Relationship between president and prime minister and between governor and chief minister Chapter 8. Some important executive functions Part VI - Jurisdiction Chapter 1. The Concept of Jurisdiction Chapter 2. Without jurisdiction and its effect Chapter 3. Source of power and jurisdiction Chapter 4. Classification of jurisdiction constitutional and statutory jurisdiction Chapter 5. Proceedings in which question of jurisdiction may be raised Part VII Section-A Interpretation Chapter 1. Interpretation and its relation with judicial review Chapter 2. Interpretation and its nature Chapter 3. Constitutional and statutory interpretation Chapter 4. Resolving conflicting constitutional provisions Chapter 5. power of interpretation, as source of law Chapter 6. "judicial activism" or "judicial restraint" Chapter 7. Tensions arising from judicial review Chapter 8. Doctrine of deference Chapter 9. Natural justice in interpretation Chapter 10. Interpretation of jurisdiction ousting clauses Section - B Doctrine of Precedent Chapter 1. Historical background Chapter 2. Law-declaring or law-making Chapter 3. Categories of precedent Chapter 4. Justification for precedents to be binding Chapter 5. Doctrine of precedent under arts. 189, 201 of the constitution Chapter 6. What is binding under articles 189, 201 Chapter 7. Who is bound by precedent Chapter 8. Are decisions under articles 189 and 202 retrospective or prospective in effect Part VIII - Fundamental Rights Section - A General Chapter 1. Nature, importance of fundamental rights Chapter 2. Principles of policy Chapter 3. Relationship between fundamental rights & principles of Policy Chapter 4. Interpretation of fundamental rights Chapter 5. Articles 7 & 8 - effect of violation of fundamental Right Section - B Articles 9 to 28 Chapter 1. Article 9 - right to life and liberty Chapter 2. Article 10 - safeguards as to arrest and detention Chapter 3. Article 11 - protection against slavery, forced labour Chapter 4. Article 12 - protection against retrospective punishment Chapter 5. Article 13 - protection against double punishment and self-incrimination Chapter 6. Article 14 - dignity of man, privacy of home, torture Chapter 7. Article 15 - freedom of movement etc. Chapter 8. Article 16 - freedom of assembly Chapter 9. Article 17 - freedom of association Chapter 10. Article 18 - freedom of trade, business or profession Chapter 11. Article 19 - freedom of speech and press Chapter 12. Article 20 - freedom to profess religion and to manage religious institutions Chapter 13. Article 21 and article 22(2) safeguards as to taxation on religious grounds Chapter 14. Article 22 - safeguards as to educational institutions in respect of religion Chapter 15. Articles 23 & 24 - right to property Chapter 16. Article 25 – equality Chapter 17. Article 26 – Discrimination in Respect of Access to Public Places Chapter 18. Article 27 – Safeguard against Discrimination in Service Chapter 19. Article 28 – Preservation of Language, Script & Culture Part IX – Constitutional Power of Judicial Review Section A – Some Preliminary Topics Chapter 1. Historical Background Chapter 2. Distinction between Appeal and Judicial Review Chapter 3. Has Article 199 affected the Civil Courts’ Power Section B – Power of Judicial Review under Article 199 Chapter 1. The Provisions and the Change they Reflect Chapter 2. Procedure in Judicial Review proceedings Chapter 3. Subject to the Constitution Chapter 4. Threshold Questions Chapter 5. Persons and Bodies Subject to Judicial Review Chapter 6. Is the Remedy a Matter of Rights or Discretion Chapter 7. Clause (1) Sub-Clause (a) Chapter 8. Clause (1) Sub-Clause (b) Chapter 9. Clause (1) Sub-Clause (c) Chapter 10. Clauses (3) and (5) Chapter 11. Clauses (4) & (4a) – Interim Relief Section C – Supreme Courts Power under Clause (3) of Article 184 to enforce Fundamental Rights Chapter 1. Its Legislative History Chapter 2. Condition of Public Importance Chapter 3. Relationship between Article 199 and Article 184 (3) Chapter 4. Have fundamental Rights Extra-Territorial Application Section D – Reliefs that may be Granted to Enforce Fundamental Rights Chapter 1. Enforcing the Fundamental Rights Chapter 2. Power to Grant Reliefs is very Wide Part X – Some Important Judicial Review Topics Chapter 1. Scope of Judicial Review of Preliminary Legislation Chapter 2. How does the Question of Constitutionality Arise Chapter 3. Grounds on Which Primary Legislation Cannot be Challenged Chapter 4. The Grounds of Challenge to Primary Legislation Chapter 5. Categories of Constitutionality invalid Legislation Chapter 6. Distribution of Legislative Powers and Resolution of Conflicts Chapter 7. Contravention of Express or Implied Provision of Constitution Contravention of Express Provision Chapter 8. Judicial Review of Constitutional Amendments Section B – Judicial Review of Administrative Actions Chapter 1. Justification for Treating Subordinate Legislation with Administrative Actions Chapter 2. The Doctrine of Ultra Vires Chapter 3. Nature of Subordinate Legislation Chapter 4. Judicial Review of Administrative Action Generally Chapter 5. Administrative Discretion Section C – Some Other Important Judicial Review Topics Chapter 1. Fairness Chapter 2. Natural Justice Chapter 3. The Right to be Heard Chapter 4. The Rule against Bias Chapter 5. Duty to give Reasons Chapter 6. Duty to Communicate the Adverse Order Chapter 7. Legitimate Expectation; Promissory Estoppel Chapter 8. Unreasonableness Chapter 9. Mala Fides Chapter 10. Time-Limit Clauses Chapter 11. Judicial Review in National Security and Emergency Matters Chapter 12. Questions of Fact Chapter 13. Judicial Review of the Decisions of Courts Chapter 14. Granting Declaration on a Question of Criminal Law Part XI – The Doctrine of Necessity and Power of Judicial Review Biography Index ............................................................................................................................. About the Author Justice (R) Fazal Karim, is a former Judge of the Supreme Court of Pakistan. presently, he is the Permanent Court of Arbitration at Hague. .............................................................................................................................
