Do the Constitutional Courts of Pakistan have the Power to Declare any Law Null and Void?
The constitutional courts of Pakistan have the power to declare any law null and void, subject to certain conditions. Article 199 of the Constitution of Pakistan 1973 grants the high court, being a constitutional court, the power to declare a law null and void if it is contrary to the Constitution or the fundamental rights guaranteed under the Constitution. Pakistan is a democratic republic with a written Constitution, and all institutions derive their powers and authority from it.
The preamble of the Constitution of Pakistan is based on the doctrine of separation of powers, which means that the legislative, executive, and judiciary organs of the state operate independently within their own domains and cannot interfere in each other’s functions. The Constitution clearly defines the limits of these organs and prohibits them from exceeding their authority.
The doctrine of separation of powers is a fundamental principle of modern constitutionalism. It is based on the idea that the powers of government should be divided among separate branches, each with its own distinct functions and responsibilities, in order to prevent the concentration of power in any one individual or group. The doctrine has its origins in the writings of political philosophers such as Montesquieu, who argued that the separation of powers was essential to the preservation of liberty and the prevention of tyranny.
In Pakistan, the Constitution explicitly recognizes the doctrine of separation of powers. Article 2 of the Constitution provides that the Islamic Republic of Pakistan shall be a federal democratic state, wherein the principles of democracy, freedom, equality, tolerance, and social justice, as enunciated by Islam, shall be fully observed. The Constitution then goes on to establish three distinct branches of government: the legislature, the executive, and the judiciary, each with its own distinct powers and functions.
The Constitution of Pakistan, adopted in 1973, establishes a federal parliamentary system of government with separation of powers among the executive, legislative, and judicial branches. The concept of separation of powers is an essential aspect of the Constitution and serves as a vital safeguard against the concentration of power in any one branch of government.
Executive Branch
The executive branch of the government is headed by the President of Pakistan, who is the head of state. The President is elected by an electoral college consisting of the members of the National Assembly, the Senate, and the Provincial Assemblies. The President’s powers are limited to a ceremonial role and some executive powers, such as the power to pardon, the power to appoint the Prime Minister and governors of the provinces, and the power to summon or dissolve the National Assembly.
The real power in the executive branch lies with the Prime Minister, who is the head of the government. The Prime Minister is appointed by the President and is responsible to the National Assembly. The Prime Minister has the power to appoint and dismiss the members of the cabinet, which is responsible for the administration of the government.
Legislative Branch
The legislative branch of the government consists of a bicameral parliament, which includes the National Assembly and the Senate. The National Assembly is the lower house, and its members are elected by the people of Pakistan. The Senate is the upper house, and its members are elected by the members of the provincial assemblies.
The Parliament has the power to make laws and pass budgets. It is also responsible for approving treaties, declaring war, and impeaching the President or any high official accused of misconduct.
Judicial Branch
The judicial branch of the government consists of the Supreme Court, High Courts, and other subordinate courts. The Supreme Court is the highest court in Pakistan and has the power of judicial review, which means it can declare any law or executive action unconstitutional if it violates the Constitution. The Supreme Court also has the power to interpret the Constitution and provide guidance to the other branches of the government.
The Constitution establishes the independence of the judiciary by providing for the appointment of judges through a judicial commission, which is comprised of judges, lawyers, and other legal experts. Judges are appointed for a fixed term and cannot be removed from office without a judicial inquiry and the approval of the Supreme Judicial Council.
The separation of powers is an essential feature of the Pakistani Constitution of 1973. It ensures that no branch of the government can become too powerful and that there are checks and balances in place to prevent abuse of power. The executive, legislative, and judicial branches of the government work together to ensure that Pakistan remains a democratic country with the rule of law, and they cannot enter fair in each other domains.
The Constitution of Pakistan, which was adopted in 1973, provides for a range of fundamental rights to its citizens. These rights are enshrined in the Constitution’s Part II, also known as the “Fundamental Rights” chapter. The following are some of the most important fundamental rights protected by the Constitution of Pakistan.
Right to Equality
The Constitution of Pakistan guarantees the right to equality before the law and prohibits discrimination on the basis of race, religion, caste, sex, or place of birth. All citizens of Pakistan are entitled to equal protection of the law, and no one can be discriminated against on the basis of their gender, religion, or ethnicity.
Freedom of Speech
The Constitution of Pakistan also guarantees the right to freedom of speech, expression, and the press. This right allows citizens to express their opinions and ideas freely without fear of retribution from the government or other entities.
Right to Life and Liberty
The Constitution of Pakistan recognizes the right to life and liberty as fundamental. No person can be deprived of their life or liberty except in accordance with the law. This right also includes the right to a fair trial, the right to bail, and the right to habeas corpus.
Freedom of Religion
The Constitution of Pakistan recognizes the freedom of religion and allows citizens to practice their religion without interference from the state. The Constitution also prohibits the state from promoting or favouring any particular religion.
Right to Education
The Constitution of Pakistan recognizes the right to education as a fundamental right. The state is responsible for providing free and compulsory education to all children between the ages of five and sixteen.
Right to Property
The Constitution of Pakistan recognizes the right to property and prohibits the state from taking private property without due process of law. The state can only acquire private property for public use and must compensate the owner at a fair market value.
Right to Assembly
The Constitution of Pakistan also guarantees the right to assembly and peaceful protest. Citizens have the right to peacefully gather and demonstrate without fear of retribution from the state. Other then these there are other rights which are declared by the constitution as fundamental rights, in the constitution of Pakistan article 8-28 deals with the topic of fundamental rights, and if the legislature passed any law which is violates these fundamental rights the constitutional courts have the power to declare that law void.
Article 8 of the Constitution stipulates that any law that violates fundamental rights shall be declared void. The high court, being a constitutional court, has the power to declare such laws null and void. The preamble of the Constitution also guarantees the independence of the judiciary, which must be fully ensured.
Recently, the province of Khyber Pakhtunkhwa passed a bill called “The Khyber Pakhtunkhwa Enforcement of Women Property Rights Act, 2019,” The law was passed to address the issue of women being denied their rightful share of inheritance and property, which is a common problem in the region. This violates various articles of the constitution due to which it has been challenged before the Peshawar High Court by Tania Mustafa, who by profession is an Advocate of High Court through his counsel Bassam Ahmad Siddiqui, Advocate High Court on several grounds. Firstly, it is argued that the law violates the doctrine of separation of powers by giving both executive and judicial powers to the same body. This is in direct contravention of the Constitution, which mandates the separation of powers.
Secondly, it is claimed that the law violates the fundamental right to a fair trial, guaranteed under Article 10A of the Constitution. Thirdly, it is argued that the law violates the principle of judicial hierarchy established in the Constitution. The Constitution’s Judicature chapter provides that all lower courts are subordinate to the high court, and all high courts are subordinate to the Supreme Court. The law in question violates this principle. Lastly, the law also gives the power of contempt to an institution other than the high court or Supreme Court, which violates Article 204 of the Constitution.
In conclusion, the Constitution of Pakistan establishes a clear framework for the exercise of powers by various organs of the state. Constitutional courts have the power to declare any law null and void if it contravenes the Constitution or fundamental rights. The recent challenge to “The Khyber Pakhtunkhwa Enforcement of Women Property Rights 2019” illustrates the importance of upholding the principles of separation of powers and hierarchy in the exercise of state authority.
The writer is currently a student of LLB at Khyber Law College, Peshawar