January 01, 2018

Judicial Review and Democracy

A former chief justice of Pakistan discusses the country’s constitution and the role the courts played when the military seized power.

Hon. Tassaduq Hussain Jillani

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Democracy and judicial review have a symbolic relationship. Democracy, as understood generally, is a political system where the government is chosen through the free and fair process of elections, where citizens have a right to participate in governance, where individual rights are protected under the law or constitution, and where the rule of law is enforced through an independent judiciary. Judicial review on the other hand is the power of the court to examine an order of the executive authority regarding its legality or an act of the parliament regarding its constitutionality.

Pakistan is a parliamentary democracy, and the powers are vested through a written constitution in the three organs of the government, i.e., the legislature, the executive, and the judiciary. Their respective functions are laid down in the Constitution. To keep each organ within its defined jurisdiction, to interpret the law and Constitution, and to protect the fundamental rights of the people is the function of the courts—in particular, the Supreme Court of Pakistan. In short, it is the Court, in the words of John Adams, that ensures that it is a “government of laws, not of men.” The Court performs this function through its power of judicial review.

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