onstitution is the supreme law of every state. Any law found inconsistent with the fundamental rights contained in the constitution can therefore be declared ultra vires of the constitution by the superior courts under the power of judicial review.

The doctrine of judicial review postulates that the legislative and executive actions are subject to scrutiny by the superior courts to determine their compatibility with the terms of a written constitution.

Under the power of judicial review, Pakistan’s superior courts examine the validity of a law by applying the rules of ultra vires and the condition mentioned in Article 8 of the constitution and principles laid down in various judgments.

Vires is the strength, power and extent of a court or legislature’s jurisdiction to do something. Ultra vires means beyond power. Oxford Dictionary defines ultra vires as an act or decision beyond the legal power of the person or institution making it.

Under Article 8 of the Constitution of Pakistan, the validity of a law can only be challenged on the grounds of its inconsistency with the fundamental rights provided by Articles 9 to 28 of the constitution. Article 8(2) prohibits the legislature from legislation inconsistent with fundamental rights subject to the exception provided by Article 8 (3) of the constitution. Article 8(4) further casts an obligation on the legislature to bring laws specified in Part 2 of the First Schedule of the constitution in conformity with fundamental rights.

Our constitution is based on the separation of powers whereby the parliament makes the laws, the judiciary interprets those and the executive implements the laws. However, it remains the judiciary’s duty to examine the vires of the legislature on the touchstone of the constitution.

The trichotomy of powers is the backbone of the constitutional scheme. The legislature, the executive and the judiciary have no authority beyond that granted to them under the constitution. None of them is omnipotent. The judiciary thus has the authority to interpret the constitution and the law, but it is not authorised to create, amend or re-write the constitution or enact a new law. The judiciary, like the other branches of the government, has to function under the supreme law of the land, i.e. the constitution.

Article 2A of the constitution lays down that the independence of the judiciary is to be secured and protected. The judges of the superior courts take an oath to defend, preserve and protect the constitution. When striking down an illegal or unconstitutional provision or interpreting the constitution, they are bound to protect and preserve the constitution.

Under the doctrine of judicial review, the US Supreme Court, for the first time in 1803 in the famous case of Marbury vs Madison, declared a legislative action unconstitutional.

Our constitution is based on the separation of powers whereby the parliament makes the laws; the judiciary interprets those; and the executive implements the laws. However, it is the judiciary’s duty to examine the vires of the legislature on the touchstone of the constitution.

In England, in the case of Jackson, it was held by the House of Lords that the classic account given by Dicey of the doctrine of supremacy of parliament, pure and absolute as it was, can now be seen out of place in the modern United Kingdom. The Indian Supreme Court, in the case of Minerva Mills Limited, while considering the constitutionality of the 42nd Amendment to the constitution, held that the judiciary was the interpreter of the constitution and was assigned the task of determining the extent of power conferred on each branch of the government, its limits and whether any action transgressed such limits.

In Pakistan, superior courts enforce the fundamental rights of citizens guaranteed under the constitution. The courts, under the power of judicial review, have been examining and declaring the law void and inoperative constitutionally when such laws are inconsistent with the fundamental rights, independence of the judiciary or other provisions of the constitution.

In the case of Mahram Ali, specific provisions of the Anti-Terrorism Act were declared unconstitutional for militating against the concept of independence of judiciary and Articles 175 and 203 of the constitution.

In the case of the Lahore Development Authority, guiding principles were laid down by the Supreme Court based on which an act of the parliament could be declared unconstitutional. In the said case, it was further explained that the validity of a law cannot be challenged based on the principles of policy, Article 4 of the constitution or any other provision of the constitution.

But in the Sui Southern case, some other conditions were also mentioned for challenging the validity of a law by the same honourable judge of the Supreme Court of Pakistan. These are: For examining the validity of the law, the court will also consider the substance, competence, bona fide purpose and object of the statute. The court should also lean in favour of upholding the constitutionality of an Act and would also be extremely reluctant to strike down laws as unconstitutional.

Once a law is held unconstitutional, all rights, liabilities and obligations incurred or accrued to a person as a consequence cease and are of no legal effect.

No rights or obligations can accrue under an unconstitutional law once this court declares it ultra vires. The effect of such a declaration is that such legislation becomes void ab initio, devoid of any force of law. It can neither impose an obligation nor expose anyone to any liability.

On the other hand, when a law enacted under the constitution is repealed by the legislature, the rights, liabilities, privileges and obligations accrued or incurred under it are protected by Article 264 of the constitution and Section 6 of General Clauses Act, 1897, and Section 4 of West Pakistan General Clauses Act, 1956.

Before declaring a law ultra vires of the constitution, a notice is issued to the advocate general or attorney general under Oder 27A Rule-1 of the Civil Procedure Code, and an opportunity for a hearing is provided to the federal or provincial government.

The writer is an advocate of the Supreme Court of Pakistan based in Peshawar. He has an LLM in constitutional law. He can be reached at ziaurrahmantajik123@gmail.com