JUDICIAL ACTIVISM IN PAKISTAN

Posted on July 15 by Rehmat Ullah

(A Research Paper)

By Rehmat Ullah

OUTLINES:

1. Introduction
a. Doctrine of separation of power

b. What is Judicial Activism?

2. Origin of Judicial Activism

a. Lord Coke in Dr Bonham case in UK in 1610

b. Chief Justice Hobart in Day Vs Savage case in UK in 1615

c. Marbury Vs Medison case in USA d.

d. Macquillun VS Maryland Case in USA

e. Justice Brandies of the US Supreme Court in the Ashwander vs Tennessee Valley Authority
(1936)

f. Indira Gandhi Vs Raj Narayan case in Allahabad High Court, Indai

3. Judicial Activism in Pakistan

a. Historical Background
b. Moulvi Tameez ud din Case, c. Dosso Case, d. Nusrart Bhutto Case, e. Saifullah Case in
1988, f. Junejo’s Government Case, g. Nawaz Sharif’s Government Case-1993, h. Legal
Reforms Ordinance 1996, i. Al-Jihad Trust Case in March 1996, j. Appointment of Judges Case
in February 2010, k. 14th Constitutional Amendment, l. Anti-Terrorism act-1997, m. Advent of
Iftikhar Muhammad Chaudhry as CJP, n. Judicial Crisis after March 9, 2007, o. Restoration of
the CJP on July 20, 2007, p. Return of Nawaz Sharif, Musharraf’s eligibility and other cases,
q. Imposition of Emenergency on November 3, 2007, r. February 18, 2008 Elections and Burban
Declaration, s. Popular Lawyers’ Movement, t. Reinstatement of the CJP and other Judges in
March 2009, u. National Judicial Policy-2009, v. Declaring emergency as illegal in July 2009
and sending back PCOed judges, w. Loan write-off inquiry, the recent order on the NRO, the
affixing of the price of sugar and the investigation into the pricing of petroleum products are
significant markers in an evolving judicial philosophy
4. Judicial Activism and Constitution of Pakistan-1973

a.Legal Status of Judicial Activism in Pakistan

b. Legal arguments

c. Article 175 (2)

d. Article 184 (Sou Moto Power is Exercised under this Article)

e. Articles 187 & 199

f. Political Argument with reference to various cases

5. Bright Side of Judicial Activism

a. Relief to Desperate People

b. Public Interest Litigations, Constitutional Petitions and Sou Moto Notices

6. Dark Side of Judicial Activism

a. Personal whims

b. Confrontations

6. Conclusion

a. Sentinel of the Democracy

b. Strong Democratic Traditions Taking Roots in our Political System

c. A Strong Judiciary Increases the Faith of the Common Man in the System

d. Strong and Independent Judiciary Leads to Political Stability and Constitutional Harmony.

“If a law written by the legislature conflicts with the Constitution, the law is “null and void.”
Only laws which shall be made in pursuance of the constitution” are to be the supreme laws of
the land.” Chief Justice of the United States of America John Marshall.
Introduction:

A modern democratic state is built on the principle and doctrine of trichotomy of powers, also
known as trias politica, i.e. legislature, judiciary and executive. The doctrine of separation of
powers is model for governance of democratic states in which powers of the three government
institutions have defined by constitutions of each democratic state. This principle lays separation
of governmental functions and affairs which is an indispensable means for locating and fixing
responsibility and accountability. The tripartite division reinforces or merges into balanced
government. The three distinct powers — they are now the familiar legislative, executive and
judicial powers — with the latter a recognizable judiciary with independent tenure of office and
for all insistence on separation for the sake of warding off actions of oppressive governments.
The theory of separation seems to presuppose the notion that the powers of government are
consisting of largely in making laws, executing laws, and applying them to particular cases
through the rule of law as designed under the constitution. However, it has been observed that
even in developed polities, the functioning of the legislature and executive leave a lot to be
desired. Instead of being vigilant and acting as a check on executive persecution, the legislature
becomes its hand-maiden. In addition, it is slack in enacting laws. To fill the vacuum resulting
from this legislative-executive mal-functioning, the judiciary has to assert itself by providing
relief to the sufferers of tyranny and by interpreting laws, which are either deficient or vague.
The Constitution of Pakistan is also based on the principle of trichotomy of powers. This
principle provides that the three branches — legislature, executive and judiciary — have their
certain powers and functions defined in the Constitution-1973 and it will amount to
constitutional impropriety if any organ oversteps its jurisdiction and interferes in the functions of
the any other organs. No doubt, the Constitution of Pakistan establishes the principle of the
trichotomy of powers, it does not provide for complete separation among the three organs. For
instance, the executive appoints members of the superior judiciary and parliament is empowered
to fix the number of judges of the Supreme Court. On its part, the superior judiciary can
determine the validity of laws passed by parliament as well as the acts of the executive [through
judicial review also known as judicial activism]. In interpreting the constitution and the law,
some of the judges pay close attention to the text and go by the generally understood meaning of
the words used, intent of the original lawmaker and relevant precedents. This disposition on their
part is known as judicial restraint. Then, there are others who interpret the law in the context of
their own philosophical persuasions and their understanding of the circumstances and needs of
the time. They feel free to ignore precedents [and may call for judicial review any legislative
arbitrariness or executive abuses]. Their approach is called judicial activism. This approach is
based on interventions by superior judiciary in affairs of other branches of the state, when they
fail to deliver [or their actions are repugnant to fundamental rights of citizens]. 1

Origin & Evolution of Judicial Activism:

“We are under a Constitution, but the Constitution is what the judges say it is, and the
judiciary is the safeguard of our liberty and of our property under the Constitution,” Chief
Justice of the Untied States once said. (Speech before the Chamber of Commerce, Elmira,
New York (May 3, 1907)
 “IT is emphatically the province and duty of the judiciary to say what the law is,” says Chief
Justice John Marshall of the US. Consequently, the judges necessarily have to exercise their
power, irrespective of the posture of the power-hungry executive or the touch-me-not attitude of
the legislature. Judicial activism is a time-honoured trait of judicial function, and to give up that
trait is to capitulate before these two mightier organs of the state. History abounds in scintillating
examples of judicial activism, when the judiciary came face-to-face with legislative arbitrariness,
or executive abuses or interference in the due course of legal proceedings.
In the Dr Bonham case [in UK], decided in 1610, the issue was the validity of the charter
of the Royal College of Physicians, confirmed by an Act of Parliament, which gave the
incorporated society of physicians power to impose fine upon physicians going against its rules.
The fines so imposed were payable half to the crown and half to the society. Dr Bonham, who
was alleged to have violated the society’s rules by practicing medicine in London without
obtaining a proper certificate was summoned before the Royal College of Physicians and fined.
When he refused to pay the fine, he was imprisoned. He brought action for false imprisonment.
Lord Coke, chief justice of the Court of Common Appeals before whom the case was listed, held
the imprisonment wrongful on the ground that the statute which made the college the judge of its
own cause, complainant and prosecutor, was against ‘common right and reason’, and was void.
He declared: “When an Act of Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will control it, and adjudge such act to be void.”
The judicial activism of Lord Coke shocked many people who strongly believed in the
supremacy of parliament. Nevertheless, Lord Coke laid the foundation of judicial review, and
history has justifiably conferred on him the title of ‘the legal father of judicial review’. Five
years later, another great judge, Hobart, was called upon to decide the Day vs Savage case. Chief
Justice Hobart ruled: “It is against right and justice and natural equity as to make a man judge in
his own case.” He emphatically declared: “Even an Act of Parliament, made against natural
equity, as to make a man judge of his own case, is void in itself, for the laws of nature are
immutable, and they are leges begum (the law of laws).” Chief Justice Hobart’s famous phrase,
leges begum, has become the foundation of the modern concept that the constitution, being the
basic law, is the law of all laws.

Two hundred years later, John Marshall, chief justice of the US Supreme Court, [who
served as CJ of US Supreme Court from February 1801 till his death in 1835, according to
Wikipedia] expounded the theory of judicial review in Marbury vs Madison [in 1803] and
Mccullough vs Maryland [in 1819] in 19th century. He had to face a conflict between an act of
Congress and the constitution. He said: “It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to particular cases must of necessity
expound and interpret that rule.”
He ruled that it is a proposition too plain to be contested that the constitution controls any
legislative act repugnant to it, and any legislative act contrary to the constitution is not law. He
propounded the theory of judicial review in relation to the written constitution, what his
predecessors, Lord Coke and Justice Hobart, did with respect to the higher norms of the common
law and natural equity respectively. Chief Justice John Marshall’s proposition not only infused
fundamentality into the constitution but also proclaimed that the court could decide on the
constitutionality of the laws. He asserted the power of the courts to curb any illegality,
whosoever its author may be.
Tocqueville paid a well-deserved tribute: “The power given to the American courts to
pass on the constitutionality of statutes constitutes one of the most powerful barriers which has
ever been raised against the tyranny of political assemblies”. ‘Judicial auto-limitation’ is a phrase
used by Prof Edward McWhinney to describe the principles enounced by Justice Brandies of the
US Supreme Court in the Ashwander vs Tennessee Valley Authority (1936) case. All the
principles indicated by Justice Brandies in this case are rules to be observed in exercising the
power of judicial review. The Brandies principles have been further developed by Justice
Frankfurter. They make up the doctrine of judicial self-restraint. This doctrine has been accepted
as “a judicial policy of non-involvement, as far as possible, in great political and social tension
issues”.
It is not their view that in the face of legislative tyranny or executive authoritarianism the
judiciary must kneel down and muse over its helplessness. If such a situation of judicial
helplessness comes to pass, the unique role etched out for the judiciary by the great visionaries of
law — Lord Coke, Hobart and John Marshall — would come to nothing. A striking example of
legislative excesses and judicial assertion of its review power in India was witnessed in the
Indira Gandhi vs Raj Narayan case. Soon after the Allahabad High Court struck down Indira
Gandhi’s election to parliament (and when the appeal was pending before the supreme court) the
then parliament inserted Article 329-A(4) through the constitution (39th Amendment Act, 1975)
to validate her election with retrospective effect. The majority ruled against the validity of
Article 329-A (4). Justice Mathew said: “It is the result of the exercise of an irresponsible
despotic discretion governed solely by political necessity or expediency.”
The Stuart king, James I, firmly believed that the judges, being his appointees, must obey
his order. He ordered Lord Coke that his court must conform to the king’s prerogative to
dispense with laws in certain cases or be dismissed. To this Lord Coke replied; “For my place, I
little care. I am old and worn out in the service of the Crown. But I am mortified to find that
Your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest
man can give.” The king replied: “I am determined to have 12 judges who will be of my mind in
this matter.” Lord Coke replied: “Your majesty may find 12 judges of your mind, but hardly 12
lawyers.” Lord Coke lost his position, but some of the other judges of that court recanted and
prostrated themselves before the king. While Lord Coke attained immortality, the other judges
were thrown into the dustbin of history.
Let us remind all doubting Thomases; “Be you ever so high, the law is above you. Only
knight-errants of executive excesses can fall in love with the dame of despotism, legislative or
executive. If the judiciary gives in here, it gives up the ghost.” Thus, historically, the architects
of judicial activism are Lord Coke, chief justice of the Court of Common Appeals, 1610, another
great judge, Hobart, (1615) of UK and Chief Justice US Supreme Court Justice John Marshal
laid the foundation of doctrine of Judicial Review, i.e. the judiciary should have the power to
determine whether a law enacted by the legislative or an act done by the executive was
constitutional or not. Judicial activism is the role etched out for the judiciary in a democratic
society governed by the basic law to keep the horizon of liberty clear and to give substance to the
all-pervasive concept of the rule of law. If the judiciary fails in this, nothing can save the
democratic policy, as Chief Justice John Marshall concludes: “The constitution itself becomes a
solemn mockery.” 2
Judicial Activism in Pakistan:

Historically, Judges in Pakistan may have at times struck down a law on the ground that
it was repugnant to the Constitution. More often they have voided specific actions of government
agents, because these violated the Constitution or a relevant law. On other occasions they have
validated not merely violations but abrogation and suspension of the Constitution. In 1954, a
senile Governor-General dismissed the constituent assembly. It is likely that he held democratic
politics in contempt. The Federal Court (the then Apex Court) upheld his action for reasons of
“state necessity [known as Doctrine of Necessity],” but it is possible that in addition it shared his
low regard for democratic processes.
[Furthermore,] In 1958, 1977 and 1999, the military seized the government, abrogated the
Constitution on the first occasion and put it in abeyance on the next two. The president of
Pakistan dismissed the National Assembly, and with it the prime minister, in 1988, 1990, 1993,
and 1996. The Supreme Court validated all of these actions except the Assembly’s dismissal in
1993. It validated the army’s coup by invoking the “Doctrine of Necessity.” This doctrine, it
should be noted, is not a part of the law; it is a rationale for evading or defeating the law. Resort
to it is, therefore, clearly an exercise in judicial activism. 3

Judicial restraint was the norm in the case of the Supreme Court of Pakistan. It did bend
the law at times to placate autocratic rulers or generals who had appeared gun in hand,
overthrown the existing political order, and seized the government. In these situations the judges
were acting under duress. Otherwise, rarely, if ever, did they take suo moto notice of a wrong
being done somewhere in society and proceed to right it. 4

However, the advent of parliamentary democracy in 1985 in Pakistan marks a water-

shed in Pakistan’s political development. The renewal and strengthening of the political process
has also brought to the fore the concomitant advantages associated with such a process.
Pakistan’s media is growing in the exuberance of freedom as compare to past decades, a luxury it
has never enjoyed in Pakistan’s history. A participatory and democratic polity has integrated all
foci of separatism in Pakistan. There is no active secessionist movement in Pakistan’s provinces
excluding a low-level insurgency in certain areas of Balochistan. Pakistani federalism is at its
strongest; regional leaders hitherto hankering for separation are now very much a part of the
political process, holding important offices in the center as well as the units.

The most significant blessing of the strengthening of the democratic process has been the
assertive stance being exhibited by Pakistan’s superior judiciary. Judicial activism has never
been a feature of Pakistan’s polity. Instead, our judicial history is replete with landmark
decisions which legitimized executive arbitrariness and extra-constitutional adventures. It would
be short-sighted to put all the blame for the above on the judiciary alone. A free and assertive
judiciary does not grow in vacuum. It needs a free and democratic dispensation to nurture it.
Thus, the much talked about judicial activism is a result of Pakistan’s return to constitutional
government. As already identified, Pakistan’s judicial history is replete with cases like
overturning of Maulvi Tamizuddin’s appeal, Dosso’s case and the Nusrat Bhutto case, where the
judiciary bowed to the executive’s pressure. However, things changed after 1985.
 In the Saifullah case in 1988, in spite of the executive’s strong pressure, it was made
mandatory that elections would be held on party basis. Later, the LHC and the SC both declared
that the Junejo government was dissolved unconstitutionally. By a very active interpretation of
Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the SC
interpreted the article textually, the case should have been heard by a High Court at first instance.
However, it was in 1996 that two landmark cases changed Pakistan’s political landscape
decisively. First, the Supreme Court, by repeated instructions to the effect, forced the
government to promulgate the Legal Reforms Ordinance, 1996, which separated the judiciary
from the executive at the lower level. This ordinance rectified an anomaly and aberration in our
democracy, which had been tacitly supported by ever government in order to enjoy political
clout.

Then in the path breaking “Judges case” of March 29, 1996, the SC declared that the
Chief Justice of Pakistan would have primacy in the appointment of judges to the superior
judiciary. The “consultation” with him by the executive, regarding the appointment of judges,
would have to be “purposive, meaningful and consensual.” This case has effectively put an end
to the executive practice of appointment of judges to the higher judiciary by over-riding the
advice of the Chief Justice of Pakistan. 5

In appointment judges on February 13, 2010, a three-member special bench of Supreme

Court in its short order suspended the notifications for the elevation of Lahore High Court Chief
Justice Khawaja Muhammad Sharif as a judge of the Supreme Court and appointment of Justice
Saqib Nisar as the Acting Chief Justice of Lahore High Court. The verdict declared
the notifications, issued by President Asif Ali Zardari hours earlier, in violation of Article 177 of
the state’s constitution that prevents the President from appointing a Supreme Court judge
without the consultation of the Chief Justice.

Earlier, on February 13, 2010, the president had issued a notification to promote the
Chief Justice of Lahore High Court as a judge of the Supreme Court, while senior judge Justice
Saqib Nisar had been made the acting Chief Justice of LHC in place of Justice Khwaja Sharif.
The decision, however, was taken without any consultation with Chief Justice Iftikhar Chaudhry,
prompting him to take a suo moto notice of the judges’ appointment. A three-member bench of
the SC – headed by Justice Shakirullah Jan – had been immediately constituted by the CJP to
look into the matter. In its short order, the special bench suspended the notifications issued by the
Law and Justice Division, declaring them “unconstitutional.” 6

Again back to the judicial history, Justice Sajjad Ali Shah thus brought about a “one
man judicial revolution” in the country. A novel committee, the Chief Justices Committee was
formed, which routinely castigated executive excesses publicly. After being rushed through
Parliament, the 14th Constitutional Amendment was hailed as the remedy against the scourge of
floor-crossing, which had de-stabilized the democratic political system in the post-Zia ul Haq
era. To this extent, of course, it was a much needed step. However, it was widely criticized for
going far beyond the anti-defection intent and eroding the very basis of democracy by stifling
dissent and meaningful debate and, thus, violating the freedom of speech guaranteed in the
Constitution. Furthermore, by vesting party leaders with sweeping powers to unseat legislators
and denying judicial redress to the latter, it was seen as having imposed party dictatorships and
political regimentation.

All these issues went before the Supreme Court and its 6-1 verdict has only partially
validated the controversial Amendment. The six judges in favor have struck down the portions
curbing the legislators’ right to express dissent inside and outside Parliament. However, almost
certainly with an eye to the bitter realities of our political culture, they were unswayed by the
conscience-voting argument and maintained the compulsion for legislators to vote according to
party dictates so as to “bring stability to the polity” by eliminating floor-crossing. Even in
allowing this right of verbal dissent, there was a 4-2 split among the honorable judges. Justices
Saiduzzaman Siddiqi and Irshad Hassan held that even dissent outside the legislature was
ultimately damaging to party discipline inside the House and, thus, for political stability
generally. They believed that principled dissent required the legislator to resign the seat won
under a party flag. Hence, they favored upholding the 14th Amendment in its entirety. However,
the six judges were unanimous in diluting the vast powers given to party bosses by upholding the
right of an unseated legislator to seek remedy from the High Court and the Supreme Court.

In another landmark judgment, the Supreme Court declared as invalid several provisions
of the controversial Anti Terrorism Act (ATA-1997), and directed the government to amend the
law accordingly. Headed by Chief Justice Ajmal Mian, a five-member bench of the Apex Court
heard the case, and upheld the view taken by the Lahore High Court in an earlier judgment.
Among the specific sections of the ATA-1997 pronounced as ‘violation of the Constitution’
and recommended for suitable amendment are provisions relating to arbitrary powers given in
the law-enforcing agencies to search, open fire and record confessional statements. But, above
all, the Apex Court ordained the jurisdiction of the High Courts over the special courts
established under the ATA-1997, abolishing the ‘Appellate Tribunals’ which were hitherto
empowered to hear appeals against convictions by the special courts.

The striking down of the anti-terrorism law, which critics had from day one judged as a
hasty and ill-conceived piece of legislation, is a welcome judicial intervention. The Supreme
Court, being the watchdog of the constitution, has done what is expected of it. Needless to say,
without a system of checks and balances, even the cherished ideal of the supremacy of
parliament can end up in the tyranny of the majority. Moreover, the casual approach of our
elected representatives in the crucial task of law-making is matched only by the pre-occupation
of the executive with arrogating to itself the sole authority to run the system. Notwithstanding
pious intentions, the government’s prescription to combat terrorism was widely seen as an
attempt to circumvent the due process of law, rather than streamlining the system to cope with
the imperative of speedy justice. The Supreme Court judgment has once and for all rejected the
concept of summary trials, and dealt a blow to the executive-sponsored moves to create a parallel
judicial system. Thankfully, the Apex Court has held in check the pronounced tendency for
arbitrary functioning. It has reaffirmed the independence of judiciary, and thus safeguarded
fundamental rights and civil liberties. Hopefully, this message has been forcefully brought home
to the government. There should now be no “ifs and buts” in its response to the Supreme Court’s
verdict to recast the Anti-Terrorist Act. 7
 When the executive and legislature fail to deliver democratic dispensations and protect
fundamental rights of the citizens in the country, then, this attitude gives way to judicial
activism. With the advent of Iftikhar Muhammad Chaudhry as Chief Justice of Pakistan in 2006,
the superior judiciary no longer limited itself to settling issues and correcting wrongs that were
brought before it by the aggrieved parties. [Apart from other landmark judgments like Pakistan
Still Mill case], the court headed by Chief Justice Iftikhar Muhammad Chaudhry began to act on
its own initiative to identify cases in which an individual’s rights had been violated. It summoned
those in charge of security and order to produce persons who had gone missing [without
producing them before any court of law] because they had been taken away by government
agencies, and explain why they were being held. It ordered the suspension of public officials
who had neglected its instructions or otherwise failed to cooperate with it. And it ordered police
officers to pay heed the reports of crimes that the victims had come to report and register cases
against the accused.
These actions of the court evoked mixed reactions. The parties whose grievances were
being addressed and alleviated, and who had not found relief in the concerned organs of the
administration, applauded the court’s interventions. But many students of government and
politics felt that the court had been overstepping the bounds of propriety, and that it had been
invading and usurping the domain of the executive branch. Needless to say, the court’s actions
greatly annoyed the executive and persuaded its head, Gen Pervez Musharraf, to suspend the
chief justice on March 9, 2007. The General’s move led to a judicial crisis that caused the
country’s system of governance a great deal of trouble. A few months later the Supreme Court
voided Musharraf’ action and restored Justice Chaudhry to his office on July 20, 2007.
Following his restoration, he decided many significant cases, prominent among them included;
return of Pakistan Muslim League-Nawaz (PML-N) supremo, Mian Nawaz Sharif, to Pakistan
and subsequent sou moto action on his forcible return from the country, eligibility of General
Musharraf for being elected for second term cases and challenging of National Reconciliation
Ordinance-NRO. And, Gen Musharraf accused the CJP for interventions in executive affairs and
imposed emergency on November 3, 2007. However, a seven-member bench headed by the CJP
declared the promulgation of the emergency as illegal and unconstitutional and barred the judges
and officials to act under the emergency rule the same day. This time, the former president
sacked about 58 judges of supreme and high courts and put them under house arrests. During this
period, the CJP remained out for a much longer period. 8

After the February 18, 2008 general elections, two main political parties including
Pakistan People’s Party-PPP and PML-N signed a written declaration in March 2008 at Burban
for reinstating about 58 judges of Supreme and High Courts who had demurred to take oath
under controversial Provisional Constitutional Order-PCO when the former president General
Musharraf promulgated emergency on November 3, 2007. However, the PPP leadership chose
renege from his written promises and the PML-N separated itself from the coalition government
and sat in the opposition benches of the parliament. The lawyers, political parties including
PML-N and civil society launched a popular and historic movement which finally forced the
government to restore the judges in March 2009 who were sacked by the former military ruler
unconstitutionally on November 3, 2007 when he imposed emergency rule in the country. Many
observers believed this emergency was second coup of Musharraf who assaulted this time on the
judiciary and media in the country. This time Iftikhar Muhammad Chaudhry has been reinstated
as result of historic movement of lawyers supported by political parties, civil society and media.
Though, movements are historically backed by labour unions, but this movement lacked the
support and struggle of working class unions and associations. Saeed Shaftqat believes the
lawyers’ movement does not qualify for movement because it lacked broad political agenda.
Many believed the movement empowered an individual chief justice rather than upholding rule
of law. However, this time massive responsibility falls on the shoulders of judiciary to deliver
justice to the desperate masses in the country.

After his restoration, the CJP formulated a new “National Judicial Policy-2009” aims to
ensure speedy justice, eliminate corruption and ensure independence of the judiciary in the
country. Under the policy, a special cell has been set up to eliminate corruption from the
judiciary and no chief justice or superior court judge will accept any public office or the charge
of acting governor. The policy envisages speedy disposal of around 1.5 million cases pending in
courts, of which over 19,000 cases are to be decided by the Supreme Court and the High Courts
in the country. The nation will feel a positive change in courts under the new policy. 9

Again, the superior judiciary in its landmark judgment, declared the promulgation of
state of emergency as illegal and unconstitutional and sent back those judges who violated the
Apex Court’s order issued on November 3, 2007 which declared imposition of emergency as
illegal and barred the judges from taking oath under the PCO-2007. Then, in the big picture, it
appears that the loan write-off inquiry, the recent order on the NRO, the affixing of the price of
sugar and the investigation into the pricing of petroleum products are significant markers in an
evolving judicial philosophy — a philosophy that is aggressively creating a wider canvas on
which the superior courts are to operate.

Judicial Activism and Constitution of Pakistan-1973:

It is an established fact that the Constitution of Pakistan establishes the principle of the
trichotomy of powers, it does not provide for complete separation among the three organs. For
instance, the executive appoints members of the superior judiciary and parliament is empowered
to fix the number of judges of the Supreme Court. On its part, the superior judiciary can
determine the validity of laws passed by parliament as well as the acts of the executive.

Article 175 (2) provides that no court shall have any jurisdiction except conferred on it by
the constitution or any ordinary law. However, in case of a dispute regarding the scope and limits
of the jurisdiction, the same is to be settled by the judiciary, and ultimately by the Supreme
Court, as this involves interpretation of law and the constitution. Parliament can dilute the
powers and functions of the judiciary by amending the constitution. But such amendments
themselves are open to judicial review.

Judicial activism is being exercised by the Supreme Court under Article 184, which is its
original jurisdiction. Para 3 of the article empowers the court to make an order if it ‘considers’
that a question of public importance with regard to enforcement of any of the fundamental rights
guaranteed by the constitution is involved. Again, it is for the apex court to decide whether the
matter is important enough to warrant the invocation of the original jurisdiction of the court. The
suo motu power is exercised under this article.

Article 187 empowers the Supreme Court to issue all such directions, orders and decrees,
as it deems necessary, and secure the attendance of any person and production of any document
for doing complete justice in any matter before it. Under Article 190, all executive and judicial
authorities shall act in aid of the Supreme Court. 10

Articles 184, 187, and 199 of the Constitution appear to authorize the court to act in cases
of “public importance” involving fundamental rights for the purpose of securing complete
justice. Reading these articles, [one] gets the impression that the court is to act in matters
pending before it or upon the application of an aggrieved party. Article 199 begins with the
caution that the authority conferred upon it is to be exercised if the court is satisfied that “no
other adequate remedy is provided by law.” In other words, it is asked to act with
circumspection. 11

Though parliament is empowered to amend any provision of the constitution by a two-

third majority, any amendment to the constitution has to be within its basic framework, otherwise
it will be invalid. Thus parliament can introduce minor changes to the constitution; it cannot re-
write or deface the constitution by changing its essential character. For example, while
parliament can rename the Supreme Court as the Federal Court or fix the number of judges, it
cannot abolish the court itself. The former will be a change within the basic framework of the
constitution and hence an amendment; however, the latter will not qualify as an amendment to
the constitution.

The dilemma of the judiciary is that if the courts remain silent on the acts of omission
and commission of the government and do not exercise their constitutional jurisdiction, they are
accused of being docile to or colluding with the rulers. And if they do, they are charged with
having a political agenda.

Having looked into the legal arguments against judicial activism, let us turn to political
arguments. It is averred that judicial activism will undermine the authority of parliament and the
executive and thus weaken democracy. At a time when democracy is struggling to take root and
the government is grappling with the grave menace of terrorism, the argument goes, judicial
activism will make the writ of the executive weaker. The argument is a fallacy. Judicial activism
is the effect rather than cause of ineffective role of both parliament and the executive. If the other
two organs would have been alive to their role, the judiciary would hardly have asserted itself the
way it is doing. Here are some examples. To begin with, the executive did little to prevent or
mitigate the recent sugar crisis. The sugar shortage would not have arisen had the government in
the first place imported sugar in time and later acted against politically powerful cartels, which
created artificial shortage to raise prices. Nor did parliament, for obvious reasons, carry out any
meaningful debate on the issue. This left the judiciary, the ultimate protector of the rights of the
people, with no option but to intervene.
 Secondly, the popularly elected parliament did not pass a single resolution condemning
the subversion of the constitution and dismissal of the judges by General Pervez Musharraf on
November 3, 2007. It was left to the Supreme Court to invalidate those extra-constitutional acts.
Similarly, the judges were restored only under duress; otherwise the government was dilly
dallying over the issue by constituting committees which it knew well was an exercise in futility.

Thirdly, the PPP government had all along defended the NRO and the benefits accrued
under that as a brilliant example of the political astuteness of the party leadership and even tried
to get it through parliament. When the NRO came up for hearing in the Supreme Court, the court
could either validate or invalidate it. Validation of the NRO was out of the constitution as it
conflicted with several provisions of the constitution. Besides, even the major beneficiaries of
the NRO did not defend it in the court. Hence, the court had to declare the Ordinance as
unconstitutional. Moreover, if the NRO was void, it was so ab initio and similar were the
benefits derived under its umbrella.

Fourthly, the mutli-billion rupee Punjab Bank Scam should have been resolved by the
executive itself rather than leaving it to the Supreme Court. Fifthly, we all know that loans worth
billion of rupees were waived by banks for political reasons. But has parliament taken
cognizance of the matter? Has it passed any law providing for recovery of defaulted loans?
[Subsequently, the Supreme Court took suo moto notice of the unlawful written-off loans by the
government banks, which were taxpayers’ money.]

Finally, despite its commitment from day one, the PPP government has not repealed the
seventeenth amendment to the constitution. Suppose the amendment is challenged in the
Supreme Court for being in conflict with the basic character of the Constitution. The SC would
either validate or invalidate it for being incompatible with the basic character of the Constitution.
The decision either way will arouse criticism.

It is said that in western democracies, courts exercise judicial restraint and do not dabble
into political questions. No doubt, in such countries political questions are normally not brought
before the courts — the major reason being that they are settled at the appropriate forum [either
parliament or else]. However, in case no other remedy is available or works, then judicial
intervention is the answer. An obvious example is the 2000 disputed presidential election in the
USA, which was settled by the Supreme Court.

Political, and not judicial activism, is the answer to the political problems. However, the
way to attenuate judicial activism is not to hold the decisions of the courts in contempt or stifle
the independence of the judiciary, but for the executive and parliament to play their role in a
befitting manner. As long as parliament remains inert and the government follows a laissez-e-
faire approach, judicial activism will continue to fill the void. 12

Bright side of judicial activism:

 Perhaps, the bright side of Pakistan’s tryst with judicial activism is the increased relief
being provided to common citizens in the shape of Public Interest Litigations, Constitutional
Petitions and suo moto notices regarding enforced disappearances of citizens, injustices with
oppressed peasants, and desperate and marginalized people when influential persons try get court
orders in their favour. Justice Nasir Aslam Zahid provided relief to thousands of illegally
incarcerated youth during 1993-1996. He also stood up against the building mafia. He provided
sue moto relief in the famous Feroza Begum case when he ordered the release of a tortured
MQM worker, whose mother was being forced to change her party loyalties. 13 Chief Justice
Iftikhar Chaudhry also took thousands of sou moto cases which provided relief and justice to the
desperate people and many families of missing people.

Judicial activism is the last refuge against an arbitrary and irresponsible government. A
vigilant judiciary upholds the constitution, confining the legislative and executive to their
constitutional spheres. It acts as a check against the privileged power abusers of the society i.e.
the building, crime and drug mafias, corrupt parliamentarians, the influential ‘law molders,
irresponsible law enforcement agencies and other secret agencies.’ A benevolent judiciary
alleviates the agony of the underprivileged by providing suo moto relief.

The dark side:

However, if judicial activism is hijacked by individuals for personal aggrandizement and

not for the common man, then it can bring to a standstill the whole government machinery. This
was witnessed in the past. Because of the whims and caprices of one man, the judiciary, instead
of asserting itself for upholding the constitution, became the center stage of confrontation.
Contempt cases and political dueling became the order of the day. Mercifully, the crises were
resolved amicably. The judicial activism also obstructs normal running of business of
government when it begins extra interventions in affairs of the executive and begins
confrontations between the two organs of the state.

Conclusion:

Constitution-makers have meticulously defined the functions of various organs of the

State. Legislature, Executive and Judiciary have to function within their own spheres demarcated
under the Constitution. No organ can usurp the functions assigned to another. Judiciary has no
power over sword or the purse nonetheless it has power to ensure that the aforesaid two main
organs of the State functions within the constitutional limits. Neither the political executive who
is responsible for laying down the policy nor the permanent executive comprising civil servants
who are enjoined to carry out the policies of the executive can act in any manner contrary to
what the Constitution prescribes and the law defines. When all the three organs of the State owe
their existence to the Constitution, no single organ can claim immunity from accountability. It is
the duty of the executive to implement faithfully the laws made by the legislature. When the
executive fails to discharge its obligations, it becomes the primordial duty of the judiciary to
compel the executive to perform its lawful functions. Because, the constitution has clearly made
the judiciary the guarantor of the fundamental rights of the people and given the superior
judiciary wide-ranging suo moto powers. This constitutional power of judiciary is an affective
weapon to restrain unconstitutional exercise of power by the legislature and executive. The
expanding horizon of judicial review has taken in its fold the concept of socio-economic justice
in the country. Thus, the judiciary is required to take judicial notice of the social and economic
ramification consistent with the theory of law. It is the sentinel of the democracy. One must be
grateful of the fact that strong democratic traditions are taking roots in our political system. A
strong judiciary increases the faith of the common man in the system. It also leads to political
stability and constitutional harmony.

Bibliography & Notes:

1. Wikipedia,

www.answers.com

http://www.qla.net.pk/Jactivism.asp Judicial Activism in Pakistan, By Waseem Ahmad Qureshi

Advocate

http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/04-when-
judicial-activism-warranted-qs-03

DAWN, When Judicial Activism is Warranted, By Hussain H Zaidi,

Sunday, 03 Jan, 2010

http://www.dawnnews.tv/wps/wcm/connect/dawn-content-
library/dawn/news/pakistan/16-judicial-activism-hs-07

DAWN, Judicial Activism, By Anwar Syed Sunday, 26 July, 2009

Note: The thoughts expressed by writers and information provided in these links have
been edited and arranged by the writer of this paper.

2. http://www.dawn.com/2008/01/28/ed.htm#4 DAWN, Evolution of Judicial Activism, By

Prof Khwaja Masud, January 28, 2008

http://www.qla.net.pk/Jactivism.asp Judicial Activism in Pakistan

By Waseem Ahmad Qureshi Advocate.

 http://query.nytimes.com/mem/archive- free/pdf?_r=1&res=980CE6D81430E233A
25754C2A9659C946196D6CF

New York Times

http://books.google.com.pk/books?id=ShEtP_LBOZUC&pg=PA168&lpg=PA168
&dq=Chief+Justice+Hobart+Day+vs+Savage+case&source=bl&ots=p5b__l4lYH &sig=f
1_GUr0YlFZz6bt21TITSEEnt8Y&hl=en&ei=A4CCS9rXFoOXlAe0stmX Bw&sa=X&oi
=book_result&ct=result&resnum=3&ved=0CA0Q6AEwAg#v=one page&q=&f=false Google
Book, Legal and Political Hermeneutics, University of Michigan,

Note: Apart from the information provided in these websites and their arrangements,
the writer of the paper has also contributed his personal information in this section of the
research paper.

3. (http://www.dawn.com/2006/01/15/op.htm#1 DAWN, Judicial Activism in Pakistan, By

Anwar Syed, January 15, 2006)

Note: The information in the paper has been arranged and edited with addition of personal
authentic information.

4. http://www.dawnnews.tv/wps/wcm/connect/dawn-content-library/
dawn/news/pakistan/16-judicial-activism-hs-07 DAWN, Judicial Activism,

By Anwar Syed, Sunday, July 26, 2009

Note: With addition of personal authentic information and analysis.

5. http://www.qla.net.pk/Jactivism.asp Judicial Activism in Pakistan,

By Waseem Ahmad Qureshi Advocate.

Note: Edited and added with personal analysis.

6. http://www.dawn.com/wps/wcm/connect/dawn-content- library/dawn/news/pakistan/18-
lhc-chief-justice-elevated-as-supreme-court-judge- am-03 DAWN, Sunday, February 14,
2010
Note: With addition of personal reliable information.

7. http://www.qla.net.pk/Jactivism.asp Judicial Activism in Pakistan, By Waseem Ahmad

Qureshi Advocate Note: Added lecture of
Justice (Retd) Shehzad Akbar of Peshawar High Court.
8. http://www.dawnnews.tv/wps/wcm/connect/dawn-content-
library/dawn/news/pakistan/16-judicial-activism-hs-07 DAWN, Judicial Activism,
By Anwar Syed, Sunday, July 26, 2009 Note: With
addition of personal information and thoughts of Justice (Retd) Shehzad Akbar of
Peshawar High Court who delivered his lecture in PPSA Peshawar in January 2010
attended by the writer of this Term Paper.

9. http://www.dawn.com/wps/wcm/connect/dawn-content- library/dawn/news/pakistan/18-
sc-announces-new-national-judicial-policy-sa-04 DAWN, SC announces “New
National Judicial Policy”, Monday, May 4, 2009

http://www.defence.pk/forums/national-political-issues/26110-new-
national- judicial-policy-announced.html New Judicial Policy, Pakistan Defence

http://www.thaindian.com/newsportal/south-asia/pakistans-new-national-
judicial- policy-comes-into-force_100199367.html Thaindian
News http://www.nation.com.pk/pakistan-news-newspaper-daily-
english- online/Regional/Islamabad/04-May-2009/New-national-judicial-
policy- announced-corrupt-judicial-officials-will-be-made-OSD New Judicial Policy,

The Nation, May 4, 2009

Note: The writer edited and arranged the information in these websites
and contributed his personal information.

10. http://www.dawn.com/wps/wcm/connect/dawn-content- library/dawn/news/pakistan/04-

when-judicial-activism-warranted-qs-03

DAWN, When Judicial Activism is Warranted, By Hussain H Zaidi, Sunday, January

3, 2010

Note: The information in this paper has been arranged and edited with
addition of personal authentic information
 11. http://www.dawn.com/2006/01/15/op.htm#1 DAWN, January 15, 2006

By Anwar Syed

Note: Information provided in this article in cited link has been re-arranged and added
with personal authentic information

12. http://www.dawn.com/wps/wcm/connect/dawn-content- library/dawn/news/pakistan/04-

when-judicial-activism-warranted-qs-03 DAWN, When Judicial Activism is
Warranted, By Hussain H Zaidi, Sunday, January 3, 2010

Note: With addition of personal information in this section of the paper

13. http://www.qla.net.pk/Jactivism.asp Judicial Activism in Pakistan,

By Waseem Ahmad Qureshi Advocate

Note: The information which has been provided in the paper edited and
added with personal authentic information and analysis.