South Asian Studies

A Research Journal of South Asian Studies

Vol. 33, No. 2, July – December, 2018, pp. 321 – 334

Judicial Activism in Pakistan: A Case Study of

Supreme Court Judgments 2008-13
Kishwar Munir
University of the Punjab, Lahore, Pakistan.
Iram Khalid
University of the Punjab, Lahore, Pakistan.

ABSTRACT
In Pakistan, The judiciary takes on the driving seat particularly in the last decade. The judiciary
takes up all the cases of Public Interest litigation (PIL), ranges from the inconsequential cases of
kite flying to the privatization of national institution and to the constitutional cases. This pro-
active role of judiciary has created apprehensions not only in Pakistan but at international leval
too. The opponents of judicial activism hold that it cross its jurisdictional limits and interfere in
the matters which are purely the prerogative of executive and legislature. The recurrent use of
judicial powers by the Pakistan’s apex court under the suo moto jurisdiction has taken up all the
matters i.e. social, economic, political and constitutional. Pakistan has adopted the parliamentary
democracy under the separation of power. The proactive role of judiciary violates the very
principle of this theory by crossing its limits. The present research focuses on (i) The concept,
origin and scope of judicial activism (ii) The impact of judicial activism in the political,
constitutional and democratic process of Pakistan. The research will conclude that judiciary
needs to adopt the policy of self-restraint rather than self-indulgent. Adherence to the democratic
principle of separation of powers completely, Pakistan can build a strong democratic political
system.
Key Words: Judicial Powers, Self-restraint, Self-indulgent, Public Interest litigation

Introduction

Now a day, judicial activism has touched almost each and every sphere of life
ranges from human rights issues to maintenance of roads. It is the power of
judiciary to proclaim any law annulled and unconstitutional. It is related more or
less with the attitude of a judge handling the case and regarded as an attribute of
the personality of the judge than any provision in the legal system. Democracy is
based on theory of separation of power between three organs of government i.e.
executive, legislature and judiciary .When the other two organs of state failed to
secure the fundamental rights of common man than judiciary takes on a proactive
role in restoring the fundamental rights of common man, this proactive role is
termed as ‘judicial activism’ or commonly known as ‘Suo Moto’.

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Judicial activism defined in Black’s Law Dictionary, a process of the formulation
of law where judges resort to their own reasoning while deciding the matters of
interest litigation.
According to this definition under judicial activism, judges use their own
wisdom and personal views. Undoubtedly several arguments can be made in the
favor of judicial activism and its usages. It can be contended that simple
application of law in its literal meaning in complicated legal matters would not
preserve the justice. So in order to address the legal complications judges are
asked to apply their judicial wisdom. The judges take into account the events as
happening around and take subjective and objective test of the events as happened.
Therefore vigilant, active and influential judiciary seems essential to address
peculiar issues in a society where privileged class manipulate the laws in its own
favor by taking the advantage of their lack of awareness about their rights. They
are benefited by using corrupt practices which prompt the judiciary to come with
an assertive role by filling the vacuum created by executive. The judiciary protects
the fundamental rights of the citizens by assuming the proactive role.

Review of the literature

Authors develop different interpretation on boundaries of judicial activism. Ely

(1980) discourses upon the most crucial issues of America and we can relate it to
the present scenario of Pakistan. It provids guidelines within what shall the Apex
Court apply the restriction of the Constitution to the intricacies of contemporary
life? He discusses the two basic approaches proposed by legal experts. The first,
"interpretivism’s," which states that judges while making decisions should
consider only what is clear in the document itself. The second, non-
interpretivism’s, maintains that the courts should upheld the basic ideals of society.
Both approaches are essentially half-finished and insufficient and Ely’s
suggestions are centered on the view that the court while formulating decisions
makes sure that everyone's interests will be safeguarded and the solicitation of
decisions will not be influenced. For Ely the protection of governmental structure
is more important than the social values practiced by society. On the other hand,
Ahron (2006) argues that judge played the role of interpreter, for the application of
law it need to be interpreted first and a judge can interpret law in order to fill the
gap between law and changing societal reality without changing its statue. By
interpreting, judges add new meaning to law and bridging the gap between law and
life. Further he discuss that a law passed according to a social reality may become
unconstitutional due to new social reality. The courts interpret the old statue by
giving new meaning to it. But if it fails to give new meaning then the question
arises about its constitutionality. The Judge has to balance with the need of change
with stability .To achieve this, the judge has to take into account three
consideration .i.e. the rationality of the system in which he operates secondly the
powers and limitations of the institution of the judiciary as defined within that
system and lastly the way in which its role is perceived. Judge decision must not

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 Judicial Activism in Pakistan: A Case Study of Supreme Court Judgments 2008-13
reflect that it is personal, while formulating law; he needs to be careful that it
maintains coherence within legal system must take into account by formulating
decisions the institutional limits of judiciary. Interpretation of law the central role
of judiciary, it is to decide dispute, the striking difference between enacted law and
law made by judge. Judicial law making must be so that fill or bridge the gap
between society and law as Montesquieu said that judge is the mouth piece of
society. But there are certainty limitation upon judges so public does not accept
from judiciary to fill every gap between law and life, and not accept the claim that
judiciary is over powerful. One must be realist about its power and as well as
limitations. Newberg (1995) & Dawood ( 1994) discussed Pakistan constitutional
history and the historic role which our superior judiciary played through its
judgment and that how the judiciary made to intervene and render its opinion on
purely political situation in the country which in turn bound to be controversial. By
investigating judicial decisions happened during political crisis, writers examined
how tension within the judiciary and between the courts and other state institutions
have affected the whole society and that laid the foundation of the doctrine of
necessity and revolutionary legality which paved the way for further undemocratic
rules.
Waseem (2012) describes that the practice of judicial review is increasing in
working of government. Initially this interference was limited to the constitutional
matters but now days this is increasing in public affairs. In the name of judicial
review, judiciary sometimes forces executive to undo its decisions. And in few
cases judiciary supports some unconstitutional act to legalize the act of dictators.
Kumar (2014) discusses the judicial activism in the context of Indian democracy.
The writer contends that the courts ensure the limits of governmental actions under
constitutional democracy and issue within different government institutions. The
writer contends that no doubt judicial activism contributed a lot for Indian
democracy but governance cannot be replaced by judicial institutions. The
exhaustive literature on judicial activism acknowledges the positive contribution of
the phenomenon but asserts along that it is not the alternate of governing body i.e.
executive.

Research objectives

 To investigate that how far 18th amendment improve the work ability,
efficiency and transparency of Pakistan’s judicial system.
 To know whether the current wave of judicial activism is threatening for
democratic process of Pakistan.
 To investigate reasons and relevance behind current hyper activism in
Pakistan.

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Origin of judicial activism

Judicial Activism is not a new phenomenon; it dates back to Marbury vs. Madison.
The US Supreme Court held in this case that any act which is conflicting to the
constitution is invalid. The court asserts in this very case the supremacy of
constitution over all other institutions as all derives their powers from judiciary.
This was such an important case that even today it could not be ignored despite the
fact that 200 years elapsed to this case. This case had been used as a precedent all
over the world whenever a controversy occurs between parliament and courts.
Another significance case is McCullough vs. Maryland; in which Supreme Court
declared that supremacy of the constitution is paramount and rejected its assertion
of being sovereign. The SC overturned the tax imposed by state of Maryland on
federal bank. The US Supreme Court followed the tradition by re-examining the
constitutional matters even in 20th and 21st century.
The above mentioned cases show that, the SC of US exercised its power of
judicial review only on the formally filed petition by the party concerned. It uses
the power of judicial review to review the acts of congress and executive on the
constitutional petition and thus performed a constructive role in flustering the
constitutional matters between Federal and federating units.

Judicial activism in developed democratic countries

Judicial activism is increasingly grown phenomenon in recent past. People in a fast

changing world increasingly becoming conscious of their rights due to the failure
of executive to solve their problems and to come up to the people’s aspirations.
The first instance of this phenomenon found its expression about two hundred
years ago. The supreme court of US issued a verdict in a case the landmark Brown
v. Board of Education which ultimately stops segregation in schools. The Supreme
Court through its decision provided an opportunity to the politicians who are afraid
of political backlash from white community. Likewise the European courts ensure
the equality for women in workplace by enacting law which previously
governments were not willing to enforce. Politicians all over the world have a
mixed attitude towards judicial activism; they use to support it when it helps them
in getting their political objectives and opposed it when it doesn’t.

Judicial activism under suo moto

In law, Suo Motu is a term which referred to the action taken by any authority
without formal request of the concerned person. Mostly, the term applied to the
action taken by a judge at its own even without the formal petition or request made
to the court by the aggrieved person.
The Supreme Court can take Suo Moto under the article 184 (3) if it finds the
violation of fundamental rights enlisted in the Chapter one of the constitution. Any
individual can also approach the court and can file a petition to draw its attention

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about the violation of any fundamental rights. The court in these matters converts
the simple application into a petition. Thus by doing so it ignored all the
procedural requirements, the courts can summoned the concerned authorities while
responding to the said application The SCP regularly uses its power of Suo Motu
as well as its original jurisdiction to hear the cases involving social, political and
human rights issues
The use of suo motu powers by the courts in Public PIL cases started in
Pakistan with the Darshan Alias Rehmatay and others VS the State. The CJP took
notice on telegram message in which applicant asked CJP getting them released
from illegal detention and consider it as matter of PIL. The SC by relaxing the
procedural requirements declare the bonded labor illegal and thus provided the
relief by declaring it matter of public interest under the article 184(3). The SC
takes frequent notices resorting to suo moto jurisdiction on the matter of PI and
protracted the relief by enforcing the fundamental relief which increase the
people’s expectation with the judiciary. The Lawyers movement for the restoration
of judges which was greatly supported by all segments of the society e.g. doctors,
engineers and teachers etc., showed their trust in judiciary. The restoration of
judges was the significant jiffy for the independence of judiciary in Pakistan.
After the restoration of judges both from Supreme and High Courts, judicial
activism is at its highest peak than ever before. Before the restoration of judges of
the higher court, the HRC received approximately 500 applications every day. It
shows that people seeking relief directly from the SCP for their problems. But in
2009, after the restoration of superior judges the number of applicants touched the
139906 in just two years 2009-2011.
The SCP since the restoration of the judges regularly exercising its powers of
suo motu, shows that the in this period judiciary is enjoying height of judicial
activism. In just few years, there is an exhaustive list of the cases taken up by the
higher courts, indicated the extreme use of its suo moto as well as original
jurisdiction.

Privatization of Pakistan steel mill (psm) case and its impact

In 2005 process of privatization started in Pakistan under privatization order

2005.Pakistan Steel Mill was also privatized under this plan which was challenged
by Steel Mill workers union who filled the petition against the government on
charge of corruption. The main points of petition includes i.e. the privatization
process was not transparent, the share price was low, certain provisions of
privatization ordinance 2000 were ultra vires to the article 153 and 154 of the
constitution there fore had no legal binding, the process of privatization violated
the Article 2A, 3, 4, 5, 9, 23, and 38 of the constitution, the process of privatization
adopted by the government was illegal.
The PSM case in 2006 came into limelight for the first time. After that there is
the list of cases taken up by SC against executive. The PSM opened up a new
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epoch judicial hyper activism in Pakistan. The court takes the petition on the basis
of its power of suo moto and established a nine bench for hearing and take into
account all points raised by petitioner. The larger bench of SCP annulled the $362
million bid for the privatization of PSM and held that the sale of PSM was invalid
and declared the sale null and void (Khan, 2012).
The Steel Mill case reflected the haste of the executive authorities who sold
the state assets on cheap rates and improper manner to provide benefits to few
people. Steel Mill case provides a ground on which the executive General Pervez
Musharraf came into conflict with judiciary. However, the perceived saving
becomes useless when government that during its first financial year it had loss of
23 billion Rs. The daily news published a report that obligation of payable debt of
steel mill surpassed to more than 80 billion despite the bailout package of 14.6
given by the federal government. According to the report it wills the barrier of 100
billion in next year. The PSM earned the profit of 2.3 billion rupees in 2007-2008
having the debt of 7 billion rupees. The report shows that after the annulment of
the privatization deal by SC, the PSM has suffered the loss of 79 billion rupees.
The SC has taken the suo moto on reports of corruption and losses in PSM but it
suffered more after the cancellation of the privatization deal by SC. The FDI also
suffered due to the judgment.

The rental power plant (RPP) case and its impact

“RPP” project was initiated during Musharraf’s era, the cabinet committee of
economic co-ordination sanctioned a plan. It introduces rental power project in
national electricity grid. Cabinet committee approved two projects. These projects
were given to two US based companies GE and PPR of 136MW plant at Bhiki and
another plant of 150MW at Sharqpur. At that time these projects were considered
as best option to fulfill the electricity demand of Pakistan. The caretaker
government in 2008 allowed the Pakistan electric power company (PEPCO) to
install rental power plants with bigger capacity of 800MW and 1200MW.Zardari
government continued the project and approve 19 projects but only one was made
operational till June 2011 despite the advance payments to the companies and just
added 62MW electricity to the system.
The SC in its judgment in RPP declared that project is not transparent and
found massive corruption of approximately $ 5 billion. The SCP found the RPP’s
contrary to the Article 9 & 24 of the constitution. It held that it violates the terms
of the Transmission and Distribution of Power Act “TDPA” 1997.All
government’s officials (2006-2008) who were involved in RPP’s agreement were
held responsible for not taking recourse to the transparency and SC ordered
National Accountability Bureau “NAB” to take action against those who are
involved in this deal. All the officials of PEPCO, GENCO, NEPRA and their
sponsors who were involved in it were held accountable for deal. The SCP found
NAB guilty of contempt of court as it is not following SC orders therefore issued
notice to NAB chairman and others. The SCP also issued orders against a Turkish

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company refraining it from sailing out of Pakistan waters and asked it to clear the
dues.
In the RPP’s case Supreme Court brought into light the corruption and misuse
of authorities by executives and saved foreign exchange and money through its
judgment. The price of electricity will reach at height due to this deal. As a result
the small industries would suffer. It will bring negative impacts on our already
suffering economy. This is the one side of the judgments; it had certain negative
point as well. The SC intervened in the investigation matters which were
questioned by the senior judicial officers. They questioned the SC power of suo
moto in this matter. They show their concern over the extreme use of this power
by judiciary can hamper the investigation process.

Table 1: overview of the Suo Motu cases taken in this period and their impact

Case Main Issue Decisions Impact

Import of poultry contain pig meet destroy all positive
feed consignment &
action against
responsible
Margala Housing fatal for cancellation of positive
Society scheme environment scheme

Islamabad chalet Cutting of trees Banned the Scheme Positive

& Pir Sohawa in Vast area
valley villa
scheme
Macdonald CDA leased out a cancel the lease positive
Restaurant Case Plot in a park
NICL scam corruption Order to register Positive
case against NAB
Chairman & others
Hajj scam case corruption order to pay 700 Positive
Saudi riyal to each
of 26,000 pilgrims
The RPP’s case corruption Order the action Positive/negative
against all
responsible and Negative
recover the money
The Steel Mill corruption Cancelled the Positive/Negative
Case Privatization
Ephedrine Quota Illegal smuggling Hanif Abbasi Positive/Negative
case of Ephedrine in sentenced to life
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huge quantity imprisonmen
National Majority of Declare it Null & positive
Reconciliation Criminal case of Void and ordered to
Order (NRO) Politicians were reopen the cases of
withdrawn all beneficiaries
Source: Compiled by researcher from internet and newspaper

The main source for the protection of fundamental rights in Pakistan is the
courts especially the superior courts. The SCP exercised its original jurisdiction as
enumerated in Article 184 (3) of the constitution to protect the fundamental legal
rights of the citizens. The former Chief Justice Iftikhar Mohammad of Pakistan
have regularly invoked this power of suo moto, the court issue notices in the cases
related to the interest litigation and issued directions in order to protect such rights.

Table 2: Cases protecting human rights (compiled by researcher)

Cases about Decision under

constitution
Darshan Masih Case Bonded Labor declare illegal &
(PLD 1990 SC 513) unconstitutional
Environmental pollution dumping of nuclear & declared violation of
(PLD 1994 SC102) industrial waste Article 9 of the
constitution
M.Ghulam Sarwar Naqvi illiterate female’s property and
(PLD 1990 SC 1) right of inheritance & inheritance must
property be protected
Shrin Munir (PLD 1990 SC admission in medical declared
295 college on the basis unconstitutional
of sex

The researcher’s atnational and international level show their concern over the
proactive role of SCP .The Asian Human Rights commission (AHRC) reacted to
the SCP decision to arrest the prime minister and others and showed its
apprehension about the investigating authority of the apex court to oversee the
investigation. AHRC is of the view that such an extreme use of the power of
judicial review by SC would be dangerous to Pakistan. It can create political
fraction and widened the gap in rich and poor in the country which is already a
divided society on different lines. It will harm Pakistan as well as its people in
longer perspective. Markandev Katju a former judge of Indian Supreme Court said
that the judges of Pakistan’s SC have been showing utter lack of restraint which is

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 Judicial Activism in Pakistan: A Case Study of Supreme Court Judgments 2008-13
not expectable from the SC. He further held that almost every constitution in the
world taking the cue from British constitutional law has given the protection to
Governors and Presidents from criminal prosecution.

Table 3: Cases in which judiciary exceed its jurisdiction

Constitutional cases Legislative cases Executive Cases

National Reconciliation Levy of carbon & Law & order situation in
case General Sales tax Karachi & Baluchistan
Proclamation of Struck down the fixing price of sugar,
emergency Order contempt law passed gas and electricity
rd
(PCO) 3 Nov 2007 by parliament
18th constitutional appointment & removallal
amendment bureaucrats and police
officers
High Treason case Annul the contract made
against Former chief of by government bodies
army (CDA)
Source: Compiled by researcher from internet, television and news paper

In the above mentioned cases judiciary take up the matters which are the
prerogative of legislature and executive. Iftikhar Muhammad Chaudry during his
period takes up various cases via suo moto but most of them were discussed and
sensitized by media, which led to the perception that it is the lust for popularity.

Original jurisdiction of SC & constitutionality of suo moto and its

impact on the democratic process in Pakistan

The Constitution of Pakistan provides for separation of powers with in-built

mechanism of “checks and balances” between the three organs of the state i.e.
legislative, executive and judiciary. The legislature has the prerogative of
legislature and the apex courts have the powers to interpret the statues and
constitutional provision. The Article 2-A, 175 clauses 3 of the constitution
provides for independence of the judiciary and ordains its separation from the
executive. To complement the doctrine of judicial independence, the Constitution
has detailed provisions for the qualifications and procedure of appointment of
judges of superior judiciary. However, this judicial independence was restricted by
successive amendments in the constitution. During the Zulfiqar Ali Bhutto’s era

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the procedure of judge’s appointment was politicized. Several amendments were
incorporated in 1973 constitution related to judiciary.
The 18th constitutional amendments have made fundamental changes in the
method of appointment of the judges of the apex courts. The SC examined the 18th
amendment and returned to the parliament with purposed suggestions which is
later enacted by the parliament through 19th amendment.
The Supreme Court, through consecutive rulings, further multiplied the scope
and strengthened the doctrine of judicial independence. It issued directions for
complete separation of judiciary from the executive at all levels of judicial
hierarchy. Slowly and gradually the judiciary has attained the institutional,
administrative and functional independence as a state institution. Judiciary tries to
put some breaks on unchecked powers of the executive and executive tries to have
free hand in in governmental affairs.
Table 4:
The Jurisdiction of Supreme Court under the constitution of 1973, the Article 184 to 194 deals
with jurisdiction of courts.

Original Appellate Advisory Other powers

Jurisdiction Jurisdiction Jurisdiction
The SC under the Under the article The President can The SC is
article 184,1 has 185 the SC can seek opinion from empowered to
original hear from appeals SC on matters of interpret the
jurisdiction in from lower courts. public importance constitution.
reference to clash but it is on its (Article 185, 2)
between personal and has the
governments and discretion that he power to issue
regarding the accept it or direction on
enforcement of not.(article 186) any matter
fundamental pending before
rights.(Article it (article 187).
184,3). It can be The supreme
approached court has the
directly in such power to
matters without review any
approaching any order or
other court. judgments
made by it

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earlier (article
188).The SC
can make rules
relating to the
courts
procedure &
practice.

There exists two schools of thought on suo moto in Pakistan, those who
support the suo moto is of the view that traditional legal system of Pakistan failed
to cope up the demands of the day and the gap between rich and poor is widening.
In such situation the use of suo moto in IL matters helps to minimize the gap. They
argued furthermore that the other institutions had lost the credibility, reliability;
trust in the eyes of the public. The only institution which had that faith is judiciary
who had earned it through PIL. It also prevents the executive from misusing its
authority and it is authorized by constitution.
The opponents of judicial activism holds that judiciary in the pursuit of its
power sometimes interfere in the matters which are the prerogative of executive
and legislature. The Principle of Separation of Powers in a democratic set up
justifies the presence of judiciary that there should be separation of powers
between those who make, translate and implement the laws. This principle will
leads to good governance and prevent from authoritarianism (Abdul Hameed). The
separation of powers under the system of checks of balance prevents any
institution from gaining too much power .The extreme use of judicial activism can
disturb the balance of powers between the three organs of the state as enumerated
in the constitution. Therefore judiciary should adopt the policy of self-restraint and
the issues pertaining to governance should be handled by executive and legislature.
Pakistan is known for weak political institutions, powerful army, several
military coups and the article 58(2) B that has been used to send elected prime
minister to home or jail. Pakistan apart from India is the country where the suo
moto has been invoked frequently by the courts. Iftikhar Muhammad Chaudry
during his period takes up various cases via suo moto but most of them were
discussed and sensitized by media, which led to the perception that it is the lust for
popularity.

Assessment

Judicial activism found its footing easily on those societies where the governments
are week. Pakistan judicial history is marked with another feature i.e. judicial
activism. The Suo Motu is helpful in the societies where the government

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Kishwar Munir & Iram Khalid
machinery is largely dysfunctional or unresponsive to public demands. That is the
reason; people in Pakistan had admired the Supreme Court whenever it took up the
cases of interest litigation under Suo motto. The people welcomed the SC
judgments in the cases where the directly get the relief such as the cases of bonded
labor, inhuman treatment in jails, NICL scam, kite flying, Hajj corruption,
Ephedrine scam and cases of missing persons etc.
The Supreme Court, however, at times exceeds its limits by intervening in
matters that are beyond its jurisdiction. This wasted the valuable time of the courts
as they failed to produce the desired results. The court’s attempt to fix the prices of
sugar, petroleum and electricity met with no success. There are the apprehensions
regarding the Supreme Courts priority of the cases for hearing. For example, the
Asghar Khan’s petition of ISI funding has been ignored by the court for years.
In the course of this research, no judicial precedent found before the current wave
of judicial activism which vindicates the extension of IL by bringing the political
and legislature matters within their ambit. The current political and bureaucratic
environment of Pakistan is well toned with judicial activism.
Historically, political parties and politicians in Pakistan supported SC’s
decisions when it serves their political interest and opposed when finds their
interest threatened and same has been witnessed now a days in current judicial
activism against PML-N. The restoration movement of the judges provided an
opportunity to judiciary to make up for past mistake and grow as an independent.
The use of the suo moto by the courts has arguably helped bring forward issues
that have been at times ignored by elected institutions on the one hand. On the
other hand an incongruous use of suo moto can negatively impact the due process
which is important for the development of a truly democratic society. Judiciary
should exercise its power sparingly when it require, not in every matter. The
judiciary should avoid indulging in the matters of legislature nature. The strong
and liberal judiciary is the need of the time but not powerful and self –indulgent.
In the course of this research, no judicial precedent found before the current wave
of judicial activism which vindicates the extension of IL by bringing the political
and legislature matters within their ambit. The current political and bureaucratic
environment of Pakistan is well toned with judicial activism. It is in the best
interest of Pakistan that all three pillars of the government should work within the
constitutional framework. The aforesaid research reveals that people’s trust in
courts makes them courts of justice rather than courts of law which consequently
create gaps for judiciary to fill in the case of misuse of powers by legislature and
executive.

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Biographical Note

Kishwar Munir is Lecturer & Research Associate, School of Integrated Social

Sciences (SISS) & Centre for Security, Strategy and Policy Research (CSSPR),
University of Lahore (UOL), Defense Road Campus, Lahore, Pakistan.
Prof. Dr. Iram Khalid is Professor at Department of Political Science, University
of the Punjab, Lahore, Pakistan.
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334 A Research Journal of South Asian Studies