Bhagwan Das on Importance of Judicial Review

Bhagwan Das defends the power of judicial review
* Former SC justice says Pakistan needs not only lessons in rights of private persons but also their responsibility as public citizens
* Says institutions cannot go beyond the powers vested in them by the constitution
By Khalid Hasan, Daily Times, July 9, 2008

WASHINGTON: Judicial review by an independent judiciary is the key to retaining the balance of power between citizen and state, former Supreme Court Justice Rana Bhagwan Das told a conference on the weekend.

In his keynote address to the annual meeting of the Sindhi Association of North America (SANA), the former judge said, “Pakistan today needs not only lessons in the rights of private persons but also their responsibility as public citizens. The country needs a new view of the constitution as the democratic source of the balance of power between the rights and duties of the individual and the state; between the legislative, judicial and executive organs of the state and between the federation, provinces and local government.” He said the Constitution of Pakistan should be premised on the principle that the people are the real rulers and that certain rights are inalienable such as liberty of thought and expression, freedom from government's invasion of privacy, freedom from arbitrary confiscation of property, freedom from arrest without warrant, freedom of association and assembly etc. These rights would give rise to a society where the press is free and where every person's home is respected and trials are fair, and where all citizens enjoy equal rights.

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Bhagwan Das told the delegates that the constitution is the fundamental law, which has superiority over all the institutions it creates, be it the legislature, the executive or the judiciary. The institutions cannot go beyond the powers vested in them by the constitution. In a Federation, the role of the judiciary, as the guardian of the constitution, becomes a matter of central importance. The superior judiciary, he stressed, is the judge of its own jurisdiction in all civilised countries. If constitutionalism and constitutional government are to survive, the judiciary should never leave it to the government of the day to determine how much judicial control it will or will not tolerate. This is its constitutional duty and it is the part of a good judge to appropriately perceive his jurisdiction. A state of emergency, he warned, which is more contrived than real, can hardly provide an excuse for the destruction of fundamental rights and judicial powers.

The former judge pointed out that there is no state-sponsored legal assistance system in Pakistan and access to counsel for advice on constitutionally-guaranteed rights and representations before superior courts might be affordable by a very few. Against this background when the courts themselves started taking notice on matters of public importance relating to the rights of the people, their gesture was unfortunately branded as “unwarranted judicial activism”.

He said the November 3rd, 2007 Provisional Constitution Order had as its sole target the judiciary itself. Rule of law, he added, is a prerequisite for democracy and the foundation on which citizens’ rights rest.