Judicial review of legislation

--- Art. 199 --- Constitutional jurisdiction --- Judicial review of legislation --- Inherent powers of High Court --- Scope --- Through a long line of precedents and the development of common law, High Courts have derived their power of judicial review as an inherent feature of the constitutional framework --- As guardians and protectors of the Constitution, they possess, under Article 8 read along with Article 199(1)(c) of the Constitution of 1973, the authority to scrutinize legislation on the touchstone of fundamental rights --- Even in situations where no specific fundamental right is directly involved, this does not divest the High Courts of the power to invalidate legislation that is ultra vires; they continue to hold, under our constitutional scheme, the inherent authority to declare the law ultra vires, if it is in conflict with any provision of the Constitution, 1973 directly or indirectly --- Indeed, common law is valid because it depicts the opinion of learned Justices; a procession of sages and savants --- When we speak of the High Court’s “inherent power”, the question then arises: how do we arrive at this conclusion that the power is inherent in the High Courts? --- A closer examination shows that the oath taken by judges is not a mere formality --- Its wording clearly binds the judges to “preserve, protect and defend the Constitution of the Islamic Republic of Pakistan” --- This indicates that the oath is directed not towards protecting statutes (although this certainly does not mean that the laws enacted by Parliament are not to be followed or upheld), but specifically toward safeguarding the Constitution itself --- If a judge of the High Court is faced with a situation in which a statute conflicts with the Constitution, then the question arises: how can he truly ‘preserve, protect and defend’ the Constitution if he is unable to strike down the impugned law? --- The reality is that he cannot --- The moment a judge bows to a law that is inconsistent with the Constitution, he turns his oath into nothing more than words recited before assuming office --- Therefore, it is inherent in the jurisdiction and duty of the High Court to strike down laws that are ultra vires to the Constitution, 1973.