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The eighties witnessed the rise of a new phenomenon in the mode of administration of
justice, namely, judicial activism. Earlier thereto judicial activists were to be found in the
judiciary such as Justice M.R Kayani who were not deterred by jurisdictional restraints
and brushed aside procedural objections to the grant of relief wherever the path of justice
appeared clear to them.

According to them a judge instead of being astute to discover reasons for not employing
the remedy bestowed on the judiciary for correcting an error or misgovernment should be
vigilant to utilise that power wherein by any reasonable construction it could be made
applicable. Herein they were unconsciously influenced by Bassanio's plea to Judge Portia
in Shakespeare's Merchant of Venice:

"And I beseech you,

O'Judge

West once the law to your authority, .

To do a great rig/it, do a little wrong " «

Ba.ssino's above plea portrays in some ways the principle of

judicial activism.

'' »

However, judicial activism practised by our courts today is founded on firmer ground
because, when in the late eighties the courts took a closer Io»k at the constitution they
found that while resolving disputes between the contestants before them the
constitutional provision permitted them a much wider role than was the orthodox
traditional view, in that they could decide matters affecting the interest of people not only
wlicrc they were moved by a person directly affected any act but also by any other person
or persons which were similarly situated. Thus representative actions" and "class actions"
became possible instead of merely actions by individuals.

Judicial activism; therefore, is not individualistic, but broad based and people oriented,
but broad based and people oriented. ItIf

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enables access to justice through "class actions," "representative proceedings," and

"public interest litigations." It allows large numbers seeking remedies in Courts to get
justice through collective proceeding instead of being driven in an expansive plurality of
litigation. In short, it is an affirmation of participative justice in society. The basis of
judicial activism in Pakistan is the decision of the supreme court in the case of Benazir
wherein she challenged : certain amendments made during the Martial Law period in
the Political Parties Act, 1962 whereby only those political parties who were registered
with the election commission could participate in . the elections. Benazir had contended
that these restrictions were violative of Fundamental Right 17 which guaranteed
political parties to take part in national affairs. The question which arose before the court
was whether it could entertain her petition when she was not alleging the violation of any
of her personal political rights but was pleading for the enforcement of a right not for
herself alone but for the entire political party.

This petition was filed under clause (3) of Article 184 of the constitution, which says:
184(3) "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference "to the enforcement of any
of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power
to make an order of the nature mentioned in the said Article."

Article 199 of the constitution is the article which confers jurisdiction to the High Court
to issue writs to maintain legality but this it can do on the application of any "aggrieved
party." '

In a landmark judgement the supreme court not only entertained the petition, but went on
to accept it. Finding that the petition was competent, the court observed:

"The plain language of Article 184(3) shows that it is open .ended. The Article docs not
say as to who shall have the right to move tlic supreme court nor docs it say by what
proceedings the supreme court may be so moved or whether it is confined to the
enforcement of thc.Fundamcntal Rights of an individual which are infracted or extends to
the enforcement of the rights of a group or a class of persons whos<? rights are violated.

"In this context the question arises wht'I'cr apart from the non-incorporation of the sub-
Articles l(a) and 1(0 of Articles 199, the rigid notion 6T*an "aggrieved persons" is
implicit in Article
184(3) as is the case in traditional litigation \\hich, of course, if of an adversary character
where there is a list between the two

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contending parties, one claiming relief against the other and the other resisting the claim.
This rule of "standing" is an essential outgrowth of AngloSaxton jurisprudence in which
only the person wronged can initiate proceeding of a judicial nature for redress against
the wrongdoer. The rationale of this procedure is to limit it to the parties concerned and to
make the rule of law selective to give protection to the affluent or to serve in aid for
maintaining the status quo of the vested interests. This is destructive of the rule of law
which is so worded in Article 4 of the Constitution as to give protection to all citizens.

"therefore, while constructing Article 184(3) the interpretative approach should nor be
ceremonious observance of the rules or usages of interpretation, but regard should be had
to the object and the purpose for which this Article is enacted, that is this interpretative
approach must receive inspiration from the triad of provisions which saturate and
invigorate the entire Constitutions, namely the Objective Resolution (Article 2-A); the
Fundamental Rights and the directive principles of State, policy so as to achieve
democracy,tolerance, equality and social justice according to Islam."

This judgement was the precursor of the Courts intervention in favour of the bonded
labour in the brick kiln industry (the case of Darshan Mashih: (PLD 1990 S.C. 513) and
of many other interventions to further the public interest.

Thus to safeguard the rights of children the supreme court ordered that children shall not
be taken to public places for reception of dignitaries and it was further ordered that
children shall not undertake any such work which is normally to be done by the labour
force.

It also suspended the restrictions imposed on nurses working in military hospitals and air
hostesses of PIA, whereby they could be relieved of their jobs in case they decided to get
married. Henceforth married nurses and air hostesses can continue working in these
organisations. ' S

Public hangings were stayed':by the supreme court on tbt: ground that such hangings
were contrary to the unqualified guarantee given by the constitution in
Fundamental Right 14 regarding protection of the dignity and the respect of man. This
order was passed on the intervention of the Amnesty International.

Special teams consisting of its own judges were constituted P>' the supreme court to
check ^irregularities by custom ami immigration officials at railway station Lahore and
Wagah in •-elation to passengers travelling by Samjhota Express. This boldl-.. 484

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and innovative action resulted in providing great relief to visitors coming from and going
to India.

To enable serious students to carry on their educational pursuits in & calm and peaceful
atmosphere parents and guardian were required to give an undertaking at the time of
admission of their ward not to "indulge in politics" on pain of expulsion, if the ward
violated the said undertaking. The judicious application of this directive by heads of
educational institutions resulted in healthy atmosphere in the campuses and yielded
positive results in ensuring systematic education and in holding of examination on time.

These cases show that judicial activism was oriented towards obtaining performance of
duties owed by the state to further the public interest and undo violations of the
Fundamental Rights of citizens. However the court started devoting more attention in
1997 to cases not involving purely social wrongs but to cases involving acts and orders oi
the government and of the chief executive. But before coming to these cases mention
may be made to two important cases decided by the supreme court under its
aforementioned original jurisdiction conferred on it by Article
184(3). The first is the decision made by it in Nawa/ case. Herein by giving an expanded
meaning to the guarantee contained in Fundamental Rights 17 "to form or be a member
of a political party" the supreme court found that this expression comprised "the right of
that political party, contest elections under its banner but also after successfully
contesting the elections, the right to form the government if its members, elected'to that
body, arc in possession of the requisite majority and went on to add that as "the
government of the political party so formed, must implement the programme of the
political party which the electorate has mandated it to carry into effect. Any unlawful
order which results in frustrating this activity, by removing it from office before the
completion of its normal tenure would, therefore constitute an infringement of this
fundamental right."

T»he court also observed that since the president was empowered ader Article 58(2) (b)
of the constitution has arisen in which the gflvtcinmeni of the federation cannot be
carried on in accordance with the provisions of the constitution" and it further being of
the opinion that no such situation had arisen the dismissal of the prime minister along
with his cabinet and the dissolution of the national assembly under the purported exercise
of powers conferred on the president under Article 58(2) (b) was found to he without
lawful authority and to be not sustainable in law.