Judicial Activism

Proactive Role of Judiciary

 Outline
• Introduction
• Two Aspects of Judicial Activism
• History of Role of Judiciary
• For and Against Judicial Activism
• Important cases
• Conclusion
 Introduction
• PML-N supremo Nawaz Sharif said that
constitution has been virtually ‘held in
abeyance’ due to the ongoing ‘judicial
activism’ in the country.
• “Constitution stands suspended on account of
judicial activism, leading to crippling of the
executive as none of the government organs is
working,” 17-4-2018
 Introduction
• Judicial activism is an aspect of judicial
decision making, whereby judges allow their
personal views on public policy, among other
areas, to guide their decisions.
• The judiciary in Pakistan, especially after it
was restored in 2009, seems to have given
thought to the definition of the 19th-century
German theologian and writer David Strauss.
 Introduction
• According to Strauss, judicial activism can be
defined as one or more of three possible
actions including;
i. overturning laws as unconstitutional,
ii. overturning judicial precedent and
iii. ruling against a preferred interpretation of the
constitution.
 Introduction
• Judicial restraint, being a rule of interpretation,
requires judges to restrict and limit their own
power (of judicial review) and to be hesitant to
strike down laws, unless they are utterly
unconstitutional, and to exercise temperance in
interfering with the executive`s affairs.
• Politicization of judiciary.
• Judicialization of politics.
 Two Aspects of Judicial Activism
• Its two aspects are, judicial review and suo
motu. One against legislature and second against
executive.
• Judicial Review is the process whereby an apex
court interprets a law and determines its
constitutional status.
• If the judiciary finds that a given piece of
legislation is in conflict with any provision of
the constitution, it may strike down the same.
 Two Aspects of Judicial Activism
• It is exercised differently in different political
systems.
• In countries like the UK where the constitution
is largely unwritten and unitary in character and
parliament is sovereign.
• The courts can declare an act of parliament to
be incompatible with the constitution, but they
cannot invalidate a law for being inconsistent
with the constitution.
 Two Aspects of Judicial Activism
• In other words, the judiciary can only interpret
the constitution.
• The situation is different in countries where a
written and federal constitution limits the
powers of parliament.
• For instance, in the USA, the Supreme Court can
strike down legislation enacted by Congress if it
finds the same to be incompatible with the
constitution.
 Two Aspects of Judicial Activism
• In Germany, the Constitutional Court is
empowered to shoot down not only ordinary
laws but also constitutional amendments for
being inconsistent with the fundamental
character of the constitution.
• In the neighboring India, there has been a long
tussle between parliament and the Supreme
Court on the scope and limits of judicial
review.
 Two Aspects of Judicial Activism
• The twenty-fourth amendment to the
constitution passed in 1971 authorized
parliament to amend any provision of the
constitution.
• However, the Supreme Court subsequently
declared that while parliament was competent
to amend any provision of the constitution, any
amendment had to conform to the basic
framework of the constitution.
 Two Aspects of Judicial Activism
• The CJP and provincial CJs though take suo
moto notices, mostly these interventions address
individual cases.
• The suo moto power used in an individual case
could, however, also lead to improvement of
systems, empowerment of institutions or
framing of new mechanism for the greater good
of the people.
• But it is rarely done.
 Two Aspects of Judicial Activism
• The chief justice has launched around 30 suo
motu cases since the beginning of the year, even
as the judiciary groans under a backlog of 20,000
pending cases.
• His actions distort national politics.
• His impromptu visits to hospitals prompt
coverage harmful to the Pakistan Muslim
League-Nawaz (PML-N), the ruling party.
• Most of his complaints focus on Punjab.
 Two Aspects of Judicial Activism
• One suo moto, is direly needed against the
judiciary itself whose court cases and stay
orders have not only seriously dented the writ
of the government, but also contributed
massively to the sufferings of large number of
the common man.
• Judicial activism via suo moto could make a
difference if such interventions help institution
building and systems’ development.
 History of Role of Judiciary
• Historically role of judiciary can be divided
into following phases.
i. Submissive Judiciary (1954-2005)
ii. Emergence of independent Judiciary (2005-
07).
iii. Judicial Activism (2009-2013)
iv. Judicial Restrain (2013-2016)
v. Judicial Activism (2017-2018)
 For Judicial Activism
• Defenders of the Judicial Activism give reasons
of the inability of the government and poor
governance as for judicial interference.
• In the presence of over 20,000 pending cases,
criticism of the Supreme Court of Pakistan is not
without reason.
• But it would also be wrong to deny the positive
changes brought about by the incumbent
superior judiciary through judicial activism.
 For Judicial Activism
• The constitution rather than parliament is
sovereign and that being a custodian of the
constitution and the fundamental rights,
• The judiciary is well within its mandate to look
into the vires of any executive act and
• Therefore judicial activism is not only its right
but also its duty in the face of a “irresponsible”
executive and a “docile” parliament.
 For Judicial Activism
• The biggest change that has resulted through
judicial activism is the fear of ruthless
accountability by the (superior) courts.
• It paved the way forward when it sent home an
elected prime minister after putting him on
trial in an open court.
• Two PMs have been sent home by the
proactive judiciary in the recent past.
 For Judicial Activism
• It has helped put powerful and effective checks
on the abusive and arbitrary use of authority
and powers by the political and civil
bureaucracy.
• Human rights violations have been noticed in a
much more forceful and effective manner.
• The credit for this change also goes to the
democratic governments, an active civil society
and a bold, vocal media
 For Judicial Activism
• CJP Nisar stated that protecting fundamental rights
was the prime duty of courts.
• Courts were forced to take notice against violation of
the fundamental rights due to omission on part of the
state.
• “If state performs its duty well, courts would have no
need to do this,”.
• He pointed out that there was a suggestion, to allow
live media coverage of the proceedings in human
rights cases.
 For Judicial Activism
• In addition to the executive checks this judicial
activism has also strengthened belief in
constitutional supremacy.
• For the first time in Pakistan, political parties
and the media firmly believe that any military
takeover would no longer find judicial
endorsement.
 Against Judicial Activism
• In fact supporters of judicial restraint believe
that judicial activism does not find space in the
scheme of separation of powers under the
constitution.
• They say that judicial activism, taken up so
frequently by the media, has become routine,
and common litigation is more the exception
than the norm.
 Against Judicial Activism
• The problem with judicial activism lies in what
may be perceived as the judges` personal views
on public policy.
• There is a danger that sometimes judges, being
human, may miss the fine line dividing
interpretation and the rewriting of laws.
• It is averred that judicial activism is
undermining the authority of parliament and the
executive and thus will weaken democracy
 Against Judicial Activism
• Despite the positive aspects of its rulings, has
not been able to avoid criticism as some
political parties may see this activism as
unwarranted and unnecessary interference in
the administrative and economic affairs of the
state.
• Some of the opponents of Judicial Activism are
Ali Ahmed Kurd, Aitzaz Ahsan and Justice
(retd) Sardar Muhammad Raza
 Important cases

• Panama Case. 28th July 2017. The PM was

disqualified on Iqama instead of Corruption
cases.
• Imran Khan Case in which he was spared for
holding an offshore company.
• Election Act, 2017, decided the case on 2nd
March, 2018. A disqualified person could not
be the head of a political party.
 Conclusion
• It is concluded that Judicial Activism is better
for the state and its people if it is within the
limits of constitution.
• It appears that current judiciary is overstepping
its limits which is harmful for the democratic
system.
• The establishment and judiciary has reduced the
space for political system, hence there is a call
for judicial Martial law.