Вы находитесь на странице: 1из 11

Essays by Muhammad Faisal ul Islam

JUDICIAL ACTIVISM
Outline:
1. Introduction 2. Judicial Activism vs. Judicial Restraint 3. Origin and Historical Fruition of Judicial Activism

4.

5.

6.

7.

Marbury vs. Madison Case Dred Scott vs. Sandford Case Plessy v Ferguson Case Theories of Judicial Activism Theory of Vacuum Filing Theory of Social Want Judicial Activism in Pakistan 1) Historical Background Moulvi Tameez ud Din, Dosso and Nusrat Bhutto Cases Judges Case Legal Reforms Ordinance 2) Current Scenario Legal Status of Judicial Activism in Pakistan a) Principle of Tri-chotomy' and Theory of Vacuum Filing b) Suo Moto Notices U/A. 184 (3) c) Judicial Review Power d) Custodian of constitution is apex court e) Supreme Court is guardian of Fundamental Rights of people f) Precedents from Globe e.g. USA and India Factors That Triggered Judicial Activism in Pakistan 1) Mal Performance of Executive and Legislature o Punjab Bank Scam o NICL scam o Hajj corruption o Ephedrine scam o Sugar Crisis 2) Failures of Legislature and Executive to Deliver the Goods o NRO o 17th Amendment o Ambiguity in Laws o Inhuman Treatment in jails o Cases of Missing Persons 3) Inactive and Ineffective System o Corruption o Redtapism o Foreign Interference and Influence in Domestic Affairs

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


4) Violation of Fundamental Rights of people o Target Killing o Terrorism and Suicide Bombing o Kite-strings o Cases of bonded Labour o Inhuman Treatment in Jails 5) Misuse and Abuse of The Provisions of The Constitution 6) Other Factors 8. Judicial Activism a blessing or a curse 9. Justification of Judicial Activism in Pakistan 1) Protection of Fundamental Rights of people 2) Check on Extra-constitutional Acts of Administration 3) Political Adventurism 4) Public Awareness Against Injustices 10. Conclusion

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam

JUDICIAL ACTIVISM
INTRODUCTION
In every democratic country, legislature, executive and judiciary are seen as the three most important units which play a vital role in the administration of the country. Same can be observed in the democratic setup of Pakistan in which all the functions of the state are divided into three parts: making of laws, execution of laws and to do justice. These three functions are performed by three organs which are called Legislature, Executive and Judiciary. Legislative, executive and judicial powers are distributed among different organs of government and each organ exercises them separately and independently. Though there should be close harmony between the various departments but none should have total autonomy. Each departments authority should be checked by other department so that none can find opportunity to misuse its powers. Among all these organs, judiciary is the component responsible for the resolution of disputes regarding law and order of the country. Every country irrespective of the form of government prevalent there has its own judiciary. Hence it is the branch which is supposed to be totally impartial and apolitical. However, sometimes, the laws of a country are written in such a way that they may be open to interpretation in different ways. In cases when a law is interpreted in a wrong way, the role of judges and courts as the custodians of justice becomes important. This aspect, in recent times, has given rise to the dual concepts of judicial activism and judicial restraint.

JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT:


The spot-on concept of judicial activism can be better understood and realized by analyzig the meaning of the term: judicial restraint and judicial activism. Judicial Restraint: Judicial restraint encourages the directors or judges not to misuse their powers. It encourages them to show restraint when striking down laws which it deems as unconstitutional. It is seen as the opposite of judicial activism. Judicial Activism: Judicial activism is a concept which encourages judges to move away from strictly following the law to encourage good and progressive policies. It is not consistent with the notion that judges have to exercise restraint in executive matters. It is expected to take place for causes which will further social well-being. On some occasions it is also seen as the intrusion of judiciary in the matters of legislature and executive. However there is considerable confusion in understanding the exact meaning and spirit of the term. To clarify this confusion, Bradley Canon tried to define six parameters on which judges can be termed as activist. These were

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


Majoritarianism: This parameter measures the number of policies which are passed by legislative process but overturned by judiciary. Interpretative Stability: This parameter measures the extent to which a court changes the earlier verdicts, doctrines or constitutional interpretations. Interpretive Fidelity: This parameter sees how often a law has been understood in contrary to the meaning intended by the drafters of the constitution or the language used therein. Substance/ Democratic Process: This parameter looks into the number of times a judicial decision has resulted in the making of a substantive policy as opposed to number of times it is done to preserve a democratic political process. Specificity of Policy: This parameter measures the number of times a judicial decision results in a policy and not left to the discretion of other agencies. Availability of Alternate Policymaker: This parameter measures the extent to which a judicial decision has overruled or hindered serious consideration of the same problem by other government agencies.

HISTORICAL FRUITION OF JUDICIAL ACTIVISM


Judicial activism is not a new phenomenon; it has grown over time with the failure of the executive to fully cope with the aspirations of the people becoming increasingly conscious of their rights in a fast changing world. The earliest seeds of its growth can be found about two hundred years ago, when Justice Marshall of the United States decided the celebrated case of Marbury vs. Madison. Marbury was appointed by an outgoing American president as Judge but his warrant of appointment wasnt delivered. When Marbury asked the Supreme Court to force the Secretary of State Madison to issue them, Chief Justice Marshall dismissed it saying that, the Judiciary Act of 1979 on which Marbury was basing his claims, was unconstitutional. He said that the claim violated the American Constitution which formed the basis for the laws. This was the birth of judicial activism and judicial review. If judicial activism is not handled properly or done with biased intentions or for ones own private gains it may also result in conflicts and social change. In 1857, Justice Taney ruled in the Dred Scott vs Sandford case that Negroes and whites were not equal and that Negroes should not be given the rights guaranteed in the constitution. This ruling further infuriated the blacks resulting in the American civil war and the abolition of slavery. After these the American judiciary started playing a more prescriptive approach than proscriptive. From 1898 to 1937, 50 enactments and 400 state laws were declared unconstitutional in America. Individual rights to property and the freedom to make contract were the guiding principles upon which the courts started working. Several welfare laws were struck down because they put a restriction on number of working hours of the labourer. The next major case of judicial activism was observed in 1896 in the Plessy v Ferguson case. In this case Chief Justice Earl Warren scrapped the ruling stating that blacks must be segregated but given equal rights because they ruled that it was based on racial discrimination. Warren also ruled that there will be no segregation in

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


schools and all public places. These were the major cases which were seen as early examples of judicial activism before the trend caught up in other parts of the world. In Pakistan, judicial activism became prominent because of PIL. It has also been helped by the Constitution Act, 1973 which gave more importance to directive principles. This has increased peoples expectation from courts of ensuring a better administration by giving appropriate directions.

THEORIES OF JUDICIAL ACTIVISM


There are basically two theories of judicial activism if we consider the criterion of its origin and evolution. Theory of Vacuum Filing: According to the theory of vacuum filing, the presence of inaction and laziness of any one organ of the governance results in creation of power vacuum. If any such vacuum is created, it is against the well-being of the nation and may work as a disaster for the countrys democratic setup. As a result it is not being allowed to continue and other forces may expand and fill the vacuum. In the case of judicial activism the vacuum results from the incompetence, inability, lack of discipline and character and do nothing policy from the two organs of our governance viz. the executive and the legislature. Since the vacuum is created, it should be filled and the third organ of the governance viz. judiciary doesnt have any option but to expand its powers and fill the vacuum. So the so called hyper-activism of the judiciary is the result of the vacuum created by the legislature and the executive. Theory of Social Want: According to this theory the existing legislations unsuccessful coping of the issues of the country results in judicial activism. When the existing legislations didnt solve the issues of the country, it becomes necessary for the judiciary to take proper steps and solve the problems. The last method by which they can do it was to provide non-conventional interpretations of the existing legislations so that they can use it to improve the conditions or to solve the problems. As a result judicial activism takes birth. Those who supports the theory believes that judicial activism results in the transformation of the society.

JUDICIAL ACTIVISM IN PAKISTAN


As already identified, Pakistans judicial history is replete with cases like overturning of Maulvi Tamizuddins appeal, Dossos case and the Nusrat Bhutto case, where the judiciary bowed to the executives pressure. However, things changed after 1985 and judiciary began to be active in Pakistan, when Gen Zia lifted the Martial Law, restored the 1973 constitution by making the Objective Resolution (Art. 2-A) as substantive part of the constitution. In the Saifullah case in 1988, in spite of the executives 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

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


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 Pakistans 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. 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. The introduction of the above said and future reforms, later indirectly closed the doors of the traditional legal system. Even the courts could take suo moto notice or any person could file a petition to draw the attention of the court about infringement of any of the fundamental rights. Public Interest litigation (PIL) became common, and relief to the public was given by freely invoking the Fundamental Rights enshrined in the constitution. Thus it became common that the proceedings initiated through suo moto powers for the violations of fundamental rights used to be converted into a petition under Art 184-(3). Thus the period from 1990 to 1996 was the golden period of development of PIL. But this suo moto jurisdiction of the courts was regarded by some legal circles as too arbitrary since it freed the courts from all procedures and precedents. Similarly the suo moto cases regarding the random crimes of heinous nature, deaths by kite-strings, cases of bonded labour, inhuman treatment in jails, NICL scam, Hajj corruption, Ephedrine scam, cases of missing persons, and rulings on scores of other public issues were widely welcomed by the public already wary of bad governance of the present rulers. One major benefit of judicial activism was that it gave relief to millions of poor and helpless people who were unable to knock the doors of the courts for relief.

LEGAL STATUS OF JUDICIAL ACTIVISM IN PAKISTAN


The first argument against uncomfortable kind of judicial activism was brought forward in the name of principle of tri-chotomy' of powers and sovereignty of parliament as contained in the constitution of Pakistan under which the Apex Court had to respect the Parliament and the executive. The fact remains that the Parliament can dilute the powers and functions of the judiciary by amending the constitution but such amendments themselves are open to judicial review. They forget that to fill the vacuum resulting from any legislative-executive mal-

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


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. Normally judicial activism is being exercised by the Supreme Court under Article 184, which is its original jurisdiction and the actions are initiated as suo moto. It empowers the court to make an order if it considers' that a question of public importance is involved or the fundamental rights are violated. It is for the apex court to decide whether the matter is important enough or not. The real power of activism comes with Articles 187 and 190 by virtue of which the Supreme Court issues all such directions, orders and decrees and can secure the attendance of any person, call for any document, any executive or judicial authority to reach a just decision.

Factors That Triggered Judicial Activism in Pakistan:


Judicial activism is gaining prominence in the present days. In the form of Public Interest Litigation (PIL), citizens are getting access to justice. Judiciary has become the centre of controversy, in the recent past, on account of the sudden judicial intervention. The area of judicial intervention has been steadily expanding through the device of public interest litigation. The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by progressive interpretation and positive action. It has carried forward participative justice. It has laid just standards of procedure. It has made justice more accessible to citizens". 1. Mal Performance of Executive and Legislature: Judicial activism has arisen mainly due to the failures of the executive to act i.e. sugar crisis, poverty and price hikes, Punjab Bank Scam, NICL scam, Hajj corruption, Ephedrine scam, cases of missing persons, and rulings on scores of other public issues are all outcome of the malpractices of our executive and legislatures. 2. Failure of Legislature and Executive to Deliver the Goods: Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods. NRO, 17th Amendment in the constitution of Pakistan, ambiguities in supplementary laws, cases of bonded labour, inhuman treatment in jails and all the other recent scams and crisis are attributed to the legislature and executive utterly. 3. Ineffective and Inactive System: Thirdly, it occurs because the entire system has been plagued by ineffectiveness and inactiveness owing to corruption, redtapism, foreign interference and influence in our domestic affairs and national politics. 4. Violation of Fundamental Rights of People: Fourthly, the violation of basic human rights has also led to judicial activism. For example in target killing, suicide bombing, kite-strings, cases of bonded labour, inhuman treatment in jails 5. Loopholes in Existing Laws and Punishments: Last but not least, the loopholes in existing laws and punishments have also aggravated the situation. Miserably, the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance.

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


6. Other Factors: Besides the above mentioned factors, there are some other situations that lead to judicial activism. These are: When the legislature fails to discharge its responsibilities. In case of a hung parliament where the government is very weak and instable. When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration, When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period, and Finally, the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers

JUDICIAL ACTIVISM A BLESSING OR A CURSE:


Against Judicial Activism: Due to judicial activism which is having a deteriorating impact on the democratic order, people are losing their faith in the governmental mechanism and in political leadership. Due to this they are viewing even the prime minister suspiciously. As from the theories we know that they signal the faults in our judicial system. So judicial activism comes into the picture to be in the limelight. But flaws in the executive and the legislature are not alone. There are flaws in the judiciary system also. The critics of judicial activism call it as an abuse to PIL. The apex court influenced powers of Chief Executive of the State in several cases, taking sue motto actions in NICL scam, Hajj corruption, ephedrine and many other cases. The national and international media discussed all aspects of the courts recent actions in detail. Several media reports alleged that Supreme Court was waging a campaign of judicial activism, pitting it (SC) against an elected civil government. In Favour of Judicial Activism: The problem comes that if the courts remain silent on the questionable or unjust acts of the government and do not exercise their constitutional jurisdiction; they are accused of being docile and subservient to the rulers. And if they do, they are charged with having a political agenda and are labelled with judicial activism. It is argued that this judicial activism would undermine the authority of parliament and the executive and thus weaken democracy. Speaking truly, such judicial activism is the effect rather than cause of ineffective role of both parliament and the executive. As per Daily Dawn's opinion appeared on 24th December 2009: Given the broken system of governance in many areas, judicial intervention is probably necessary in many instances. But there is a thin line between wanted judicial intervention and unwanted judicial activism that encroaches on domains of the other institutions of the state. Clearly, the constitution has made the judiciary the guarantor of the fundamental rights of the people and given the superior judiciary wide-ranging suo motu powers. However, the judges must pay heed to the fact that along with duties

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


to the people, they also have a responsibility to fashion a stronger democratic and constitutional system.' In our contemporary history our parliament remained silent over subversion of the constitution and dismissal of the judges by Gen Musharraf on 3rd November 2007. The Supreme Court had to invalidate and reverse those acts. Similarly, when the NRO came up for hearing in the Supreme Court, the court could either validate or invalidate it. Validation of the NRO was not possible because the sitting PPP government could not get it through its own elected Parliament. The apex court also saved the Pakistan Steel Mills by striking down its illegal sell-off, activated state machinery against the flow of counterfeit and bogus drugs, cancelled the conversion of public parks into commercial ventures (like McDonald's outlet in F-9 National Park Islamabad), imposed ban on kite flying (referred to case in Punjab province), gave ruling against the notorious custom of vani to stop the marriages of compensation, stopped a number of projects hazardous to the environment, ordered the authorities to recover the missing persons (specially pointing towards selling off certain people to the US by Gen Musharraf), directed for closure of substandard private institutions and medical colleges (Baqai Medical College Islamabad was one of them), and above all decided a number of human rights cases of abduction, elopement, marriages out of free will, detention, torture and murder under the suo moto jurisdiction. To adjudicate maximum number of cases to clear the huge backlog, two additional judges were inducted on ad hoc basis. At the start of 2006 there were 19,000 cases pending in higher judiciary which, despite institution of fresh cases, were reduced to 13,876 cases till the last day of December that year. A Human Rights Cell was also established in the Supreme Court, which received hundreds of applications and complaints and the office of the Chief Justice issued appropriate orders on most of them. An International Judicial Conference was also held in Islamabad in August 2006 as part of the 50th anniversary celebrations of the Supreme Court of Pakistan in which about 75 delegates from 35 countries of all the continents participated. Referring to http://www.somethingaboutthelaw.com/, there are no two opinions that the Supreme Court of Pakistan wanted to inject spirit of judicial activism by describing The Court wants that political institutions, elected representatives and government officials should perform their duties in a befitting manner which was very critical for good governance, socio-economic development and political development'. To an extent it meant that the judiciary could even make law and implement when the other branches fail to do so. The idea was probably imported from India where it was upheld by various Supreme Court judgments (Vishaka v. State of Rajasthan, Vineet Narain v. Union of India). However, we preferred to move a step further. In India, the Supreme Court had held that questions of policy would not be interfered with and were the specific domain of the executive. Whereas, Pakistani higher judiciary in 2009 interfered to determine the appropriate price of sugar thus apparently leading to a conflict between the executive's and judiciary's realm of working and power. Even in India there was lot of criticism on such judicial verdicts (Shubankar Dam: Judges as Law Makers....').

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


JUSTIFICATION OF JUDICIAL ACTIVISM IN PAKISTAN
Since the restoration of judiciary in 2009, its role in the politics of Pakistan has become controversial. Some people criticize it for being over active. On the other hand, there are some people who appreciate it. However, the bulk is of those who criticize it. Their criticism needs an analysis because rationally judiciary should continue to be an active player in the politics of Pakistan. It has dual role. Its primary concern is to ensure the obedience of law in the country. Its another very important job is to interpret the constitution and laws. Whenever any of the two purposes is not fulfilled the judiciary will be needed to come forward. In Pakistan judicial activism is justified on the following grounds. Checks on the Arbitrary Powers of Executive and Legislature: First of all it is the need of time. When the executive is not carrying out its job properly, a gap is created. In this case the tasks of executive have to be carried out by another institution. If judiciary is doing that there is no odd in it. Here it can be said that the executive is a part of legislature and the non-functional cabinet or executive members could be replaced with other members already sitting in the parliament. Yeah, it is a possibility but it wont yield well even if it is materialized. It is so because the new members wont be experienced and efficient. They will need time to gain the experience or show their efficiency as there is no guarantee of their tenures completion. Moreover, they wont like to go against the footsteps of their predecessors. Sluggishness and careless attitude will be their significant features. Hence, the job of executive will remain unfulfilled. Source of Encouragement for Other Institutions: Moreover, the active performance of judiciary will be a source of encouragement for other institutions. It will happen on two counts. First, because of judiciarys active performance of its role arise the natural tendency of institutions to feel their responsibility and carry out their jobs. Second, if the institutions still dont bother about their assigned jobs, the check of judiciary on them will force them to accomplish their jobs. Activism In Aid Of the Oppressed: Perhaps the brightest side of Pakistans tryst with judicial activism is the increased relief being provided to common citizens in the shape of Public Interest Litigation and suo moto notices. 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. Dispensation of Justice: Furthermore, the timely dispensation of justice on behalf of judiciary will strengthen the belief of people in it. This is one of the biggest dilemmas of Pakistans judiciary that people dont consider it worth consulting for getting justice. Hence, it is need of the hour that judiciary continues to play an over active role. Interpretation of Law in its True Spirit: No second opinion is in it that the formation of law is the job of legislature but the most important job after the

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420

Essays by Muhammad Faisal ul Islam


formation of law is to interpret it in a way as it could fulfil its objects as well as its scope that is confined to judiciary. This task can be performed in a befitting way only by the judiciary. In short, the biggest benefactor of the judicial activism are common people. If the judiciary keeps on taking action against the violations of laws consistently, a time will come when the practice of encroaching upon or trampling or violating the human rights will come to an end. For example, during the year of 2006, the Supreme Court had cancelled the lease deal of a CDA Public Park for its subsequent conversion into mini golf club, being contrary to fundamental rights of the general public. In another case, the Supreme Court on 15th December 2006 had ordered the private medical colleges to comply with the criteria of Pakistan Medical and Dental Council (PMDC) and ruled that after 14th August 2007 no substandard institution would be allowed to function in country. The court, in a suo moto notice had also directed the Ministry of Health and other authorities concerned to implement ban on smoking at public places.

CONCLUSION
Judicial activism if used by judges who are loyal with their work can act as one of the most powerful tools for Pakistans judiciary system. Lot of high profile cases like conviction of Yousuf Gillani and cognizance of different cases i.e. missing persons, NRO, Hajj Corription etc. is taken because of judicial activism. But if the judges are not loyal and are corrupt then it can also results in ruling which surpasses all logics because as Justice J.S.Sharma of India has referred: Judicial activism is a sharpedged tool which has to be used as a scalpel by a skilful surgeon to cure the malady. Not as a Rampuri knife which can kill. Though, it is for the benefit of each and everybody without any distinction whatsoever. Our Legislature and Executive have failed to wipe out tears from the eyes of the general public: they have given smiles to a few only but judicial activism had made smiles all pervasive. The support of the people is making judicial activism strong all the more. Judicial activism is a good thing and every good thing is opposed tooth and nail because it hurts the vested interests of a few mighty and powerful. Harsh and exemplary action taken by the Apex Court against the so called high and mighty for their wrong doings has made the henchmen of the affected high-ups start a tirade against the Apex Court. They openly say that the Court has trespassed its jurisdiction and has put on the mantle of the Executive. They argue that judiciary cant be panacea for all evils. They are conveying a wrong impression that the Court has undermined the prestige of the Legislature and the Executive. This is being done only to misguide people. The founding fathers of our Constitution were wise enough to give the sword of judicial review in the hands of the judiciary to keep the other wings of the government on the right track and to check them if they go astray. This is what the Apex Court is doing today. Judicial activism has enhanced the prestige of judiciary because it has lizoled our corrupt and foul smelling system to some extent and it has strengthened the belief and trust of the people in democracy. But this era of judicial activism is a temporary one. In our democracy the legislative, the executive the judiciary and the media have their mutually reinforcing roles which cannot be urged by a single authority.

Prepared by: by: Muhammad Faisal ul Islam Advocate

Cell: 03336587420