Judicial Activism

About the Author(s)

Eman Fatima is currently pursuing her Bachelors degree in International Relations from Government College University Lahore. She has keen interest in understanding complexities of global politics and dynamics that shape international interactions.

Judicial Activism is the exercise of power of judicial review, and it refers to the authority of judiciary to strike down the executive and legislative decisions concerning the constitutional issues. If the executive of a state fails to act on any emerging issue, then the judiciary gets active to protect the interests of public that are provided to them under the fundamental rights of constitution of that state, this is called judicial activism.

In judicial activism, judges are viewed to interfere into the matters that are in the domain of the Executive and Legislature. Judicial Activism may be a case of judges or justice overruling the law or creating legal doctrines without support which recreate policy.

If an act passes by the legislature or an order issue by the executive of a state is contradictory to the fundamental law of state, then the judiciary has the power to knock down such act or order. This power of judiciary is known as judicial review power.

JUDICIAL ACTIVISM IN PAKISTAN:

Constitution of Pakistan:

• According to the article 184(3), judicial activism is exercised by the Supreme Court of Pakistan. This article empowers the Supreme Court to make an order if it considers that the question of public importance regarding enforcement of any fundamental right is involved. This order is called SUO-MOTO order.
• According to the article 190, Action in Aid of Supreme Court, all executive and judicial organs are compelled to assist the Supreme Court in implementing its decisions and they shall act in aid and obedience of Supreme Court.       

JUDICIAL ACTIVISM AS A POLITICAL ISSUE IN PAKISTAN:

Judicial activism plays an important role in shaping various countries’ political contexts with different political systems. In Pakistan, the judiciary has taken the driving seat particularly in the last decade. Judicial activism is perhaps one way in which the judiciary has carved out a more significant path of ruling than was anticipated when the constitution of Pakistan was written. In the recent judicial history of Pakistan judiciary used their Suo-Moto powers to resolve the social, constitutional and political matters such as kite flying banning to privatization of national institution and sexually abused child’s matter to disqualification of an elected prime minister. But on the other hand, it became the cause of many leading problems in the history of Pakistan. Pakistan is a democratic country. Judiciary instead of becoming the arbitrator of justice and law has become the arbitrator of politics.

Judiciary activism has occurred as one of the most prevent political issue. In Pakistan the misuse of Suo-Moto power has raised the question on sustainability of peace.  Literary discussions and debates are divided among various groups in favour of judicial activism or its against. Supporters of judicial activism argue that it is essential in keeping a check and balance on the other pillars of state. The opponents of judicial activism argue that it crosses its jurisdictional limits and interfere in the matters which are purely under the domain of executive and legislature. The judicial activism in Pakistan has paved the path of Martial Law and many political agendas.  

The Judicial activism in political affairs of Pakistan started from Maulvi Tammizuddin case and continues till today. The political and constitutional history of Pakistan experienced judicial activism based on doctrine of necessity which was given by the Justice Munir which proved to be a legal black hole. These are many significant cases in the political and constitutional history of Pakistan which includes over and misuse of judicial review. Molvi Tameez-ud-din Khan case 1955 was the one in which Justice Munir favored the dissolution of constitutional assembly on the ground of Doctrine of necessity using the authority of judicial review that became the significant cause of democratic and political instability in Pakistan. In Dosso’s case, Pakistan Supreme court used Hans Kelsen’theory that a change can be justified when a new system replaces old norm underlying constitution.

Begum Nusrat Bhutto filed petition under Article 184(3), challenging the validity of martial law by Zia-ul-haq and detention of Zulfiqar Bhutto and 10 other political personalities .The Supreme Court misusing the authoritative power, declared the Martial Law and detention of Bhutto legal In Haji Saifullah case the Supreme Court, held that the dismissal of Mohammad Khan Junejo’s government by General Zia in May 1988 was unconstitutional but it refused to restore the National Assembly. In Pakistan, judicial activism finds its genesis in the Lawyer’s Movement of 2007, which started with the goal of restoring the then Chief Justice of Pakistan (CJP), Iftikhar Chaudhry, who had been dismissed by General Musharaff’s dictatorial regime for refusing to legitimize the subversion of the Constitution.

DRAWBACKS OF JUDICIAL ACTIVISM:

The judicial activism legalizes the interference of judiciary in other government associations and sometimes judiciary oversteps the limits which result in chaos and restlessness among different groups.

The judicial activism can lead to biased dealings and prejudicial proceedings. Activist judges have often been accused of letting go their political non-political associations scot-free while imposing harsher judgments on their so called ideological or political foes.

If the judicial activism is adopted for personal growth and not for the common people, then it can knock down the whole government machinery.

Because of the whims of one man, the judiciary instead of defending and upholding the constitution, can become the centre stage of confrontation.

POSSIBLE SOLUTIONS TO SOLVE THE PROBLEMS OF JUDICIAL ACTIVISM IN PAKISTAN;

Every problem has many existing solutions. To cope up with the critical and sensitive issue of judicial activism, following actions can be proved useful. First, we need to tackle Suo-moto powers of article 184 the provision of which does not exist in any constitution in such form and shape in this world. To alleviate the misuse of judicial activism, the senior judiciary should not be allowed to dismiss any political personality and government group as it can be done in parliament and by the elections. The judiciary should be prohibited to intervene in different political, economic and other issues until and unless it is the need of time. Some effective restrictions should be imposed on judiciary to prevent the excessive use of judicial review power. The senior judiciary should be selected based on accountability.

CONCLUSION:

The judicial activism in Pakistan has been a very critical matter of discussion. Though it benefitted the country but most of the times it became the cause of decline. The judicial activism paved the path of martial law in Pakistan. The so called effective Suo-moto powers and the interference of judiciary in executive and parliament organs has imbalanced the distribution of power in Pakistan. There are several cases in which judiciary of Pakistan, instead of using the judicial review power to solve the complex problems, exercising its ultimate power gave unjustified and illegal decisions which have had many disastrous effects on Pakistan. Some reforms should be introduced in article 184 of constitution of Pakistan to limit the powers of judiciary.