OUTLINES:

1. Introduction
a. Doctrine of separation of power
b. What is Judicial Activism?
2. Origin of Judicial Activism
a. Lord Coke in Dr Bonham case in UK in 1610
b. Chief Justice Hobart in Day Vs Savage case in UK in
1615
c. Marbury Vs Medison case in USA d.
d. Macquillun VS Maryland Case in USA
e. Justice Brandies of the US Supreme Court in the
Ashwander vs Tennessee Valley Authority (1936)
f. Indira Gandhi Vs Raj Narayan case in Allahabad High
Court, Indai
3. Judicial Activism in Pakistan
a. Historical Background
b. Moulvi Tameez ud din Case, c. Dosso Case, d. Nusrart
Bhutto Case, e. Saifullah Case in 1988, f.Junejo’s
Government Case, g. Nawaz Sharif’s Government Case-
1993, h. Legal Reforms Ordinance 1996, i. Al-Jihad Trust
Case in March 1996, j. Appointment of Judges Case in
February 2010, k. 14thConstitutional Amendment, l. Anti-
Terrorism act-1997, m. Advent of Iftikhar Muhammad
Chaudhry as CJP, n. Judicial Crisis after March 9,
2007, o. Restoration of the CJP on July 20, 2007, p. Return
of Nawaz Sharif, Musharraf’s eligibility and other
cases, q. Imposition of Emenergency on November 3,
2007, r.February 18, 2008 Elections and Burban
Declaration, s. Popular Lawyers’ Movement, t.
Reinstatement of the CJP and other Judges in March
2009, u. National Judicial Policy-2009, v. Declaring
emergency as illegal in July 2009 and sending back PCOed
judges, w. Loan write-off inquiry, the recent order on the
NRO, the affixing of the price of sugar and the
investigation into the pricing of petroleum products are
significant markers in an evolving judicial philosophy
4. Judicial Activism and Constitution of Pakistan-1973
a.Legal Status of Judicial Activism in Pakistan
b. Legal arguments
c. Article 175 (2)
d. Article 184 (Sou Moto Power is Exercised under this
Article)
e. Articles 187 & 199
f. Political Argument with reference to various cases
5. Bright Side of Judicial Activism
a. Relief to Desperate People
b. Public Interest Litigations, Constitutional Petitions and
Sou Moto Notices
6. Dark Side of Judicial Activism
a. Personal whims
b. Confrontations

6. Conclusion
a. Sentinel of the Democracy
b. Strong Democratic Traditions Taking Roots in our
Political System
c. A Strong Judiciary Increases the Faith of the Common
Man in the System
d. Strong and Independent Judiciary Leads to Political
Stability and Constitutional Harmony.

“If a law written by the legislature conflicts with the

Constitution, the law is “null and void.” Only laws which
shall be made in pursuance of the constitution” are to be
the supreme laws of the land.” Chief Justice of the United
States of America John Marshall.

Introduction:
A modern democratic state is built on the principle and
doctrine of trichotomy of powers, also known as trias
politica, i.e. legislature, judiciary and executive. The
doctrine of separation of powers is model for governance of
democratic states in which powers of the three government
institutions have defined by constitutions of each
democratic state. This principle lays separation of
kgovernmental functions and affairs which is an
indispensable means for locating and fixing responsibility
and accountability. The tripartite division reinforces or
merges into balanced government. The three distinct
powers — they are now the familiar legislative, executive
and judicial powers — with the latter a recognizable
judiciary with independent tenure of office and for all
insistence on separation for the sake of warding off actions
of oppressive governments. The theory of separation seems
to presuppose the notion that the powers of government are
consisting of largely in making laws, executing laws, and
applying them to particular cases through the rule of law as
designed under the constitution. However, it has been
observed that even in developed polities, the functioning of
the legislature and executive leave a lot to be desired.
Instead of being vigilant and acting as a check on executive
persecution, the legislature becomes its hand-maiden. In
addition, it is slack in enacting laws. To fill the vacuum
resulting from this legislative-executive mal-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. The Constitution of Pakistan is
also based on the principle of trichotomy of powers. This
principle provides that the three branches — legislature,
executive and judiciary — have their certain powers and
functions defined in the Constitution-1973 and it will
amount to constitutional impropriety if any organ oversteps
its jurisdiction and interferes in the functions of the any
other organs. No doubt, the Constitution of Pakistan
establishes the principle of the trichotomy of powers, it
does not provide for complete separation among the three
organs. For instance, the executive appoints members of the
superior judiciary and parliament is empowered to fix the
number of judges of the Supreme Court. On its part, the
superior judiciary can determine the validity of laws passed
by parliament as well as the acts of the executive [through
judicial review also known as judicial activism]. In
interpreting the constitution and the law, some of the judges
pay close attention to the text and go by the generally
understood meaning of the words used, intent of the
original lawmaker and relevant precedents. This disposition
on their part is known as judicial restraint. Then, there are
others who interpret the law in the context of their own
philosophical persuasions and their understanding of the
circumstances and needs of the time. They feel free to
ignore precedents [and may call for judicial review any
legislative arbitrariness or executive abuses]. Their
approach is called judicial activism. This approach is based
on interventions by superior judiciary in affairs of other
branches of the state, when they fail to deliver [or their
actions are repugnant to fundamental rights of citizens]. 1

Origin & Evolution of Judicial Activism:

“We are under a Constitution, but the Constitution is
what the judges say it is, and the judiciary is the
safeguard of our liberty and of our property under the
Constitution,” Chief Justice of the Untied States once
said. (Speech before the Chamber of Commerce, Elmira,
New York (May 3, 1907)

“IT is emphatically the province and duty of the judiciary

to say what the law is,” says Chief Justice John Marshall of
the US. Consequently, the judges necessarily have to
exercise their power, irrespective of the posture of the
power-hungry executive or the touch-me-not attitude of the
legislature. Judicial activism is a time-honoured trait of
judicial function, and to give up that trait is to capitulate
before these two mightier organs of the state. History
abounds in scintillating examples of judicial activism, when
the judiciary came face-to-face with legislative
arbitrariness, or executive abuses or interference in the due
course of legal proceedings.
In the Dr Bonham case [in UK], decided in 1610,
the issue was the validity of the charter of the Royal
College of Physicians, confirmed by an Act of Parliament,
which gave the incorporated society of physicians power to
impose fine upon physicians going against its rules. The
fines so imposed were payable half to the crown and half to
the society. Dr Bonham, who was alleged to have violated
the society’s rules by practicing medicine in London
without obtaining a proper certificate was summoned
before the Royal College of Physicians and fined. When he
refused to pay the fine, he was imprisoned. He brought
action for false imprisonment. Lord Coke, chief justice of
the Court of Common Appeals before whom the case was
listed, held the imprisonment wrongful on the ground that
the statute which made the college the judge of its own
cause, complainant and prosecutor, was against ‘common
right and reason’, and was void. He declared: “When an
Act of Parliament is against common right and reason, or
repugnant, or impossible to be performed, the common law
will control it, and adjudge such act to be void.”
The judicial activism of Lord Coke shocked many
people who strongly believed in the supremacy of
parliament. Nevertheless, Lord Coke laid the foundation of
judicial review, and history has justifiably conferred on him
the title of ‘the legal father of judicial review’. Five years
later, another great judge, Hobart, was called upon to
decide the Day vs Savage case. Chief Justice Hobart ruled:
“It is against right and justice and natural equity as to make
a man judge in his own case.” He emphatically declared:
“Even an Act of Parliament, made against natural equity, as
to make a man judge of his own case, is void in itself, for
the laws of nature are immutable, and they are leges begum
(the law of laws).” Chief Justice Hobart’s famous phrase,
leges begum, has become the foundation of the modern
concept that the constitution, being the basic law, is the law
of all laws.

Two hundred years later, John Marshall, chief

justice of the US Supreme Court, [who served as CJ of US
Supreme Court from February 1801 till his death in 1835,
according to Wikipedia] expounded the theory of judicial
review in Marbury vs Madison [in 1803] and Mccullough
vs Maryland [in 1819] in 19th century. He had to face a
conflict between an act of Congress and the constitution.
He said: “It is emphatically the province and duty of the
judicial department to say what the law is. Those who
apply the rule to particular cases must of necessity expound
and interpret that rule.”
He ruled that it is a proposition too plain to be
contested that the constitution controls any legislative act
repugnant to it, and any legislative act contrary to the
constitution is not law. He propounded the theory of
judicial review in relation to the written constitution, what
his predecessors, Lord Coke and Justice Hobart, did with
respect to the higher norms of the common law and natural
equity respectively. Chief Justice John Marshall’s
proposition not only infused fundamentality into the
constitution but also proclaimed that the court could decide
on the constitutionality of the laws. He asserted the power
of the courts to curb any illegality, whosoever its author
may be.
Tocqueville paid a well-deserved tribute: “The
power given to the American courts to pass on the
constitutionality of statutes constitutes one of the most
powerful barriers which has ever been raised against the
tyranny of political assemblies”. ‘Judicial auto-limitation’
is a phrase used by Prof Edward McWhinney to describe
the principles enounced by Justice Brandies of the US
Supreme Court in the Ashwander vs Tennessee Valley
Authority (1936) case. All the principles indicated by
Justice Brandies in this case are rules to be observed in
exercising the power of judicial review. The Brandies
principles have been further developed by Justice
Frankfurter. They make up the doctrine of judicial self-
restraint. This doctrine has been accepted as “a judicial
policy of non-involvement, as far as possible, in great
political and social tension issues”.
It is not their view that in the face of legislative
tyranny or executive authoritarianism the judiciary must
kneel down and muse over its helplessness. If such a
situation of judicial helplessness comes to pass, the unique
role etched out for the judiciary by the great visionaries of
law — Lord Coke, Hobart and John Marshall — would
come to nothing. A striking example of legislative excesses
and judicial assertion of its review power in India was
witnessed in the Indira Gandhi vs Raj Narayan case. Soon
after the Allahabad High Court struck down Indira
Gandhi’s election to parliament (and when the appeal was
pending before the supreme court) the then parliament
inserted Article 329-A(4) through the constitution (39th
Amendment Act, 1975) to validate her election with
retrospective effect. The majority ruled against the validity
of Article 329-A (4). Justice Mathew said: “It is the result
of the exercise of an irresponsible despotic discretion
governed solely by political necessity or expediency.”
The Stuart king, James I, firmly believed that the
judges, being his appointees, must obey his order. He
ordered Lord Coke that his court must conform to the
king’s prerogative to dispense with laws in certain cases or
be dismissed. To this Lord Coke replied; “For my place, I
little care. I am old and worn out in the service of the
Crown. But I am mortified to find that Your Majesty thinks
me capable of giving a judgment which none but an
ignorant or a dishonest man can give.” The king replied: “I
am determined to have 12 judges who will be of my mind
in this matter.” Lord Coke replied: “Your majesty may find
12 judges of your mind, but hardly 12 lawyers.” Lord Coke
lost his position, but some of the other judges of that court
recanted and prostrated themselves before the king. While
Lord Coke attained immortality, the other judges were
thrown into the dustbin of history.
Let us remind all doubting Thomases; “Be you ever
so high, the law is above you. Only knight-errants of
executive excesses can fall in love with the dame of
despotism, legislative or executive. If the judiciary gives in
here, it gives up the ghost.” Thus, historically, the
architects of judicial activism are Lord Coke, chief justice
of the Court of Common Appeals, 1610, another great
judge, Hobart, (1615) of UK and Chief Justice US Supreme
Court Justice John Marshal laid the foundation of doctrine
of Judicial Review, i.e. the judiciary should have the power
to determine whether a law enacted by the legislative or an
act done by the executive was constitutional or not. Judicial
activism is the role etched out for the judiciary in a
democratic society governed by the basic law to keep the
horizon of liberty clear and to give substance to the all-
pervasive concept of the rule of law. If the judiciary fails in
this, nothing can save the democratic policy, as Chief
Justice John Marshall concludes: “The constitution itself
becomes a solemn mockery.” 2
Judicial Activism in Pakistan:
Historically, Judges in Pakistan may have at times
struck down a law on the ground that it was repugnant to
the Constitution. More often they have voided specific
actions of government agents, because these violated the
Constitution or a relevant law. On other occasions they
have validated not merely violations but abrogation and
suspension of the Constitution. In 1954, a senile Governor-
General dismissed the constituent assembly. It is likely that
he held democratic politics in contempt. The Federal Court
(the then Apex Court) upheld his action for reasons of
“state necessity [known as Doctrine of Necessity],” but it is
possible that in addition it shared his low regard for
democratic processes.
[Furthermore,] In 1958, 1977 and 1999, the military
seized the government, abrogated the Constitution on the
first occasion and put it in abeyance on the next two. The
president of Pakistan dismissed the National Assembly, and
with it the prime minister, in 1988, 1990, 1993, and 1996.
The Supreme Court validated all of these actions except the
Assembly’s dismissal in 1993. It validated the army’s coup
by invoking the “Doctrine of Necessity.” This doctrine, it
should be noted, is not a part of the law; it is a rationale for
evading or defeating the law. Resort to it is, therefore,
clearly an exercise in judicial activism. 3
Judicial restraint was the norm in the case of the
Supreme Court of Pakistan. It did bend the law at times to
placate autocratic rulers or generals who had appeared gun
in hand, overthrown the existing political order, and seized
the government. In these situations the judges were acting
under duress. Otherwise, rarely, if ever, did they take suo
moto notice of a wrong being done somewhere in society
and proceed to right it. 4
However, the advent of parliamentary democracy
in 1985 in Pakistan marks a water-shed in Pakistan’s
political development. The renewal and strengthening of
the political process has also brought to the fore the
concomitant advantages associated with such a process.
Pakistan’s media is growing in the exuberance of freedom
as compare to past decades, a luxury it has never enjoyed in
Pakistan’s history. A participatory and democratic polity
has integrated all foci of separatism in Pakistan. There is no
active secessionist movement in Pakistan’s provinces
excluding a low-level insurgency in certain areas of
Balochistan. Pakistani federalism is at its strongest;
regional leaders hitherto hankering for separation are now
very much a part of the political process, holding important
offices in the center as well as the units.
The most significant blessing of the strengthening
of the democratic process has been the assertive stance
being exhibited by Pakistan’s superior judiciary. Judicial
activism has never been a feature of Pakistan’s polity.
Instead, our judicial history is replete with landmark
decisions which legitimized executive arbitrariness and
extra-constitutional adventures. It would be short-sighted to
put all the blame for the above on the judiciary alone. A
free and assertive judiciary does not grow in vacuum. It
needs a free and democratic dispensation to nurture it.
Thus, the much talked about judicial activism is a result of
Pakistan’s return to constitutional government. As already
identified, Pakistan’s judicial history is replete with cases
like overturning of Maulvi Tamizuddin’s appeal, Dosso’s
case and the Nusrat Bhutto case, where the judiciary bowed
to the executive’s pressure. However, things changed after
1985.
In the Saifullah case in 1988, in spite of the
executive’s 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
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 Pakistan’s 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. 5
In appointment judges on February 13, 2010, a
three-member special bench of Supreme Court in its short
order suspended the notifications for the elevation of
Lahore High Court Chief Justice Khawaja Muhammad
Sharif as a judge of the Supreme Court and appointment of
Justice Saqib Nisar as the Acting Chief Justice of Lahore
High Court. The verdict declared the notifications, issued
by President Asif Ali Zardari hours earlier, in violation of
Article 177 of the state’s constitution that prevents the
President from appointing a Supreme Court judge without
the consultation of the Chief Justice.
Earlier, on February 13, 2010, the president had
issued a notification to promote the Chief Justice of Lahore
High Court as a judge of the Supreme Court, while senior
judge Justice Saqib Nisar had been made the acting Chief
Justice of LHC in place of Justice Khwaja Sharif. The
decision, however, was taken without any consultation with
Chief Justice Iftikhar Chaudhry, prompting him to take a
suo moto notice of the judges’ appointment. A three-
member bench of the SC – headed by Justice Shakirullah
Jan – had been immediately constituted by the CJP to look
into the matter. In its short order, the special bench
suspended the notifications issued by the Law and Justice
Division, declaring them “unconstitutional.” 6
Again back to the judicial history, 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. After being rushed through
Parliament, the 14th Constitutional Amendment was hailed
as the remedy against the scourge of floor-crossing, which
had de-stabilized the democratic political system in the
post-Zia ul Haq era. To this extent, of course, it was a much
needed step. However, it was widely criticized for going far
beyond the anti-defection intent and eroding the very basis
of democracy by stifling dissent and meaningful debate
and, thus, violating the freedom of speech guaranteed in the
Constitution. Furthermore, by vesting party leaders with
sweeping powers to unseat legislators and denying judicial
redress to the latter, it was seen as having imposed party
dictatorships and political regimentation.
All these issues went before the Supreme Court
and its 6-1 verdict has only partially validated the
controversial Amendment. The six judges in favor have
struck down the portions curbing the legislators’ right to
express dissent inside and outside Parliament. However,
almost certainly with an eye to the bitter realities of our
political culture, they were unswayed by the conscience-
voting argument and maintained the compulsion for
legislators to vote according to party dictates so as to “bring
stability to the polity” by eliminating floor-crossing. Even
in allowing this right of verbal dissent, there was a 4-2 split
among the honorable judges. Justices Saiduzzaman Siddiqi
and Irshad Hassan held that even dissent outside the
legislature was ultimately damaging to party discipline
inside the House and, thus, for political stability generally.
They believed that principled dissent required the legislator
to resign the seat won under a party flag. Hence, they
favored upholding the 14th Amendment in its
entirety. However, the six judges were unanimous in
diluting the vast powers given to party bosses by upholding
the right of an unseated legislator to seek remedy from the
High Court and the Supreme Court.
In another landmark judgment, the Supreme Court
declared as invalid several provisions of the controversial
Anti Terrorism Act (ATA-1997), and directed the
government to amend the law accordingly. Headed by
Chief Justice Ajmal Mian, a five-member bench of the
Apex Court heard the case, and upheld the view taken by
the Lahore High Court in an earlier judgment. Among the
specific sections of the ATA-1997 pronounced as ‘violation
of the Constitution’ and recommended for suitable
amendment are provisions relating to arbitrary powers
given in the law-enforcing agencies to search, open fire and
record confessional statements. But, above all, the Apex
Court ordained the jurisdiction of the High Courts over the
special courts established under the ATA-1997, abolishing
the ‘Appellate Tribunals’ which were hitherto empowered
to hear appeals against convictions by the special courts.
The striking down of the anti-terrorism law, which
critics had from day one judged as a hasty and ill-conceived
piece of legislation, is a welcome judicial intervention. The
Supreme Court, being the watchdog of the constitution, has
done what is expected of it. Needless to say, without a
system of checks and balances, even the cherished ideal of
the supremacy of parliament can end up in the tyranny of
the majority. Moreover, the casual approach of our elected
representatives in the crucial task of law-making is matched
only by the pre-occupation of the executive with arrogating
to itself the sole authority to run the system.
Notwithstanding pious intentions, the government’s
prescription to combat terrorism was widely seen as an
attempt to circumvent the due process of law, rather than
streamlining the system to cope with the imperative of
speedy justice. The Supreme Court judgment has once and
for all rejected the concept of summary trials, and dealt a
blow to the executive-sponsored moves to create a parallel
judicial system. Thankfully, the Apex Court has held in
check the pronounced tendency for arbitrary functioning. It
has reaffirmed the independence of judiciary, and thus
safeguarded fundamental rights and civil liberties.
Hopefully, this message has been forcefully brought home
to the government. There should now be no “ifs and buts”
in its response to the Supreme Court’s verdict to recast the
Anti-Terrorist Act. 7
When the executive and legislature fail to deliver
democratic dispensations and protect fundamental rights of
the citizens in the country, then, this attitude gives way to
judicial activism. With the advent of Iftikhar Muhammad
Chaudhry as Chief Justice of Pakistan in 2006, the superior
judiciary no longer limited itself to settling issues and
correcting wrongs that were brought before it by the
aggrieved parties. [Apart from other landmark judgments
like Pakistan Still Mill case], the court headed by Chief
Justice Iftikhar Muhammad Chaudhry began to act on its
own initiative to identify cases in which an individual’s
rights had been violated. It summoned those in charge of
security and order to produce persons who had gone
missing [without producing them before any court of law]
because they had been taken away by government agencies,
and explain why they were being held. It ordered the
suspension of public officials who had neglected its
instructions or otherwise failed to cooperate with it. And it
ordered police officers to pay heed the reports of crimes
that the victims had come to report and register cases
against the accused.
These actions of the court evoked mixed reactions.
The parties whose grievances were being addressed and
alleviated, and who had not found relief in the concerned
organs of the administration, applauded the court’s
interventions. But many students of government and
politics felt that the court had been overstepping the bounds
of propriety, and that it had been invading and usurping the
domain of the executive branch. Needless to say, the
court’s actions greatly annoyed the executive and
persuaded its head, Gen Pervez Musharraf, to suspend the
chief justice on March 9, 2007. The General’s move led to
a judicial crisis that caused the country’s system of
governance a great deal of trouble. A few months later the
Supreme Court voided Musharraf’ action and restored
Justice Chaudhry to his office on July 20, 2007. Following
his restoration, he decided many significant cases,
prominent among them included; return of Pakistan
Muslim League-Nawaz (PML-N) supremo, Mian Nawaz
Sharif, to Pakistan and subsequent sou moto action on his
forcible return from the country, eligibility of General
Musharraf for being elected for second term cases and
challenging of National Reconciliation Ordinance-NRO.
And, Gen Musharraf accused the CJP for interventions in
executive affairs and imposed emergency on November 3,
2007. However, a seven-member bench headed by the CJP
declared the promulgation of the emergency as illegal and
unconstitutional and barred the judges and officials to act
under the emergency rule the same day. This time, the
former president sacked about 58 judges of supreme and
high courts and put them under house arrests. During this
period, the CJP remained out for a much longer period. 8
After the February 18, 2008 general elections,
two main political parties including Pakistan People’s
Party-PPP and PML-N signed a written declaration in
March 2008 at Burban for reinstating about 58 judges of
Supreme and High Courts who had demurred to take oath
under controversial Provisional Constitutional Order-PCO
when the former president General Musharraf promulgated
emergency on November 3, 2007. However, the PPP
leadership chose renege from his written promises and the
PML-N separated itself from the coalition government and
sat in the opposition benches of the parliament. The
lawyers, political parties including PML-N and civil society
launched a popular and historic movement which finally
forced the government to restore the judges in March 2009
who were sacked by the former military ruler
unconstitutionally on November 3, 2007 when he imposed
emergency rule in the country. Many observers believed
this emergency was second coup of Musharraf who
assaulted this time on the judiciary and media in the
country. This time Iftikhar Muhammad Chaudhry has been
reinstated as result of historic movement of lawyers
supported by political parties, civil society and media.
Though, movements are historically backed by labour
unions, but this movement lacked the support and struggle
of working class unions and associations. Saeed Shaftqat
believes the lawyers’ movement does not qualify for
movement because it lacked broad political agenda. Many
believed the movement empowered an individual chief
justice rather than upholding rule of law. However, this
time massive responsibility falls on the shoulders of
judiciary to deliver justice to the desperate masses in the
country.

After his restoration, the CJP formulated a new

“National Judicial Policy-2009” aims to ensure speedy
justice, eliminate corruption and ensure independence of
the judiciary in the country. Under the policy, a special cell
has been set up to eliminate corruption from the judiciary
and no chief justice or superior court judge will accept any
public office or the charge of acting governor. The policy
envisages speedy disposal of around 1.5 million cases
pending in courts, of which over 19,000 cases are to be
decided by the Supreme Court and the High Courts in the
country. The nation will feel a positive change in courts
under the new policy. 9
 Again, the superior judiciary in its landmark
judgment, declared the promulgation of state of emergency
as illegal and unconstitutional and sent back those judges
who violated the Apex Court’s order issued on November
3, 2007 which declared imposition of emergency as illegal
and barred the judges from taking oath under the PCO-
2007. Then, in the big picture, it appears that the loan
write-off inquiry, the recent order on the NRO, the affixing
of the price of sugar and the investigation into the pricing
of petroleum products are significant markers in an
evolving judicial philosophy — a philosophy that is
aggressively creating a wider canvas on which the superior
courts are to operate.

Judicial Activism and Constitution of Pakistan-1973:

It is an established fact that the Constitution of
Pakistan establishes the principle of the trichotomy of
powers, it does not provide for complete separation among
the three organs. For instance, the executive appoints
members of the superior judiciary and parliament is
empowered to fix the number of judges of the Supreme
Court. On its part, the superior judiciary can determine the
validity of laws passed by parliament as well as the acts of
the executive.
Article 175 (2) provides that no court shall have any
jurisdiction except conferred on it by the constitution or
any ordinary law. However, in case of a dispute regarding
the scope and limits of the jurisdiction, the same is to be
settled by the judiciary, and ultimately by the Supreme
Court, as this involves interpretation of law and the
constitution. Parliament can dilute the powers and functions
of the judiciary by amending the constitution. But such
amendments themselves are open to judicial review.
Judicial activism is being exercised by the Supreme
Court under Article 184, which is its original jurisdiction.
Para 3 of the article empowers the court to make an order if
it ‘considers’ that a question of public importance with
regard to enforcement of any of the fundamental rights
guaranteed by the constitution is involved. Again, it is for
the apex court to decide whether the matter is important
enough to warrant the invocation of the original jurisdiction
of the court. The suo motu power is exercised under this
article.
Article 187 empowers the Supreme Court to issue
all such directions, orders and decrees, as it deems
necessary, and secure the attendance of any person and
production of any document for doing complete justice in
any matter before it. Under Article 190, all executive and
judicial authorities shall act in aid of the Supreme Court. 10
Articles 184, 187, and 199 of the Constitution appear
to authorize the court to act in cases of “public importance”
involving fundamental rights for the purpose of securing
complete justice. Reading these articles, [one] gets the
impression that the court is to act in matters pending before
it or upon the application of an aggrieved party. Article 199
begins with the caution that the authority conferred upon it
is to be exercised if the court is satisfied that “no other
adequate remedy is provided by law.” In other words, it is
asked to act with circumspection. 11
Though parliament is empowered to amend any
provision of the constitution by a two-third majority, any
amendment to the constitution has to be within its basic
framework, otherwise it will be invalid. Thus parliament
can introduce minor changes to the constitution; it cannot
re-write or deface the constitution by changing its essential
character. For example, while parliament can rename the
Supreme Court as the Federal Court or fix the number of
judges, it cannot abolish the court itself. The former will be
a change within the basic framework of the constitution and
hence an amendment; however, the latter will not qualify as
an amendment to the constitution.
The dilemma of the judiciary is that if the courts
remain silent on the acts of omission and commission of the
government and do not exercise their constitutional
jurisdiction, they are accused of being docile to or
colluding with the rulers. And if they do, they are charged
with having a political agenda.
Having looked into the legal arguments against
judicial activism, let us turn to political arguments. It is
averred that judicial activism will undermine the authority
of parliament and the executive and thus weaken
democracy. At a time when democracy is struggling to take
root and the government is grappling with the grave
menace of terrorism, the argument goes, judicial activism
will make the writ of the executive weaker. The argument
is a fallacy. Judicial activism is the effect rather than cause
of ineffective role of both parliament and the executive. If
the other two organs would have been alive to their role,
the judiciary would hardly have asserted itself the way it is
doing. Here are some examples. To begin with, the
executive did little to prevent or mitigate the recent sugar
crisis. The sugar shortage would not have arisen had the
government in the first place imported sugar in time and
later acted against politically powerful cartels, which
created artificial shortage to raise prices. Nor did
parliament, for obvious reasons, carry out any meaningful
debate on the issue. This left the judiciary, the ultimate
protector of the rights of the people, with no option but to
intervene.
Secondly, the popularly elected parliament did not
pass a single resolution condemning the subversion of the
constitution and dismissal of the judges by General Pervez
Musharraf on November 3, 2007. It was left to the Supreme
Court to invalidate those extra-constitutional acts.
Similarly, the judges were restored only under duress;
otherwise the government was dilly dallying over the issue
by constituting committees which it knew well was an
exercise in futility.
Thirdly, the PPP government had all along defended
the NRO and the benefits accrued under that as a brilliant
example of the political astuteness of the party leadership
and even tried to get it through parliament. When the NRO
came up for hearing in the Supreme Court, the court could
either validate or invalidate it. Validation of the NRO was
out of the constitution as it conflicted with several
provisions of the constitution. Besides, even the major
beneficiaries of the NRO did not defend it in the court.
Hence, the court had to declare the Ordinance as
unconstitutional. Moreover, if the NRO was void, it was so
ab initio and similar were the benefits derived under its
umbrella.
Fourthly, the mutli-billion rupee Punjab Bank Scam
should have been resolved by the executive itself rather
than leaving it to the Supreme Court. Fifthly, we all know
that loans worth billion of rupees were waived by banks for
political reasons. But has parliament taken cognizance of
the matter? Has it passed any law providing for recovery of
defaulted loans? [Subsequently, the Supreme Court took
suo moto notice of the unlawful written-off loans by the
government banks, which were taxpayers’ money.]
Finally, despite its commitment from day one, the
PPP government has not repealed the seventeenth
amendment to the constitution. Suppose the amendment is
challenged in the Supreme Court for being in conflict with
the basic character of the Constitution. The SC would either
validate or invalidate it for being incompatible with the
basic character of the Constitution. The decision either way
will arouse criticism.
It is said that in western democracies, courts
exercise judicial restraint and do not dabble into political
questions. No doubt, in such countries political questions
are normally not brought before the courts — the major
reason being that they are settled at the appropriate forum
[either parliament or else]. However, in case no other
remedy is available or works, then judicial intervention is
the answer. An obvious example is the 2000 disputed
presidential election in the USA, which was settled by the
Supreme Court.
Political, and not judicial activism, is the answer to
the political problems. However, the way to attenuate
judicial activism is not to hold the decisions of the courts in
contempt or stifle the independence of the judiciary, but for
the executive and parliament to play their role in a befitting
manner. As long as parliament remains inert and the
government follows a laissez-e-faire approach, judicial
activism will continue to fill the void. 12

Bright side of judicial activism:

Perhaps, the bright side of Pakistan’s tryst with
judicial activism is the increased relief being provided to
common citizens in the shape of Public Interest Litigations,
Constitutional Petitions and suo moto notices regarding
enforced disappearances of citizens, injustices with
oppressed peasants, and desperate and marginalized people
when influential persons try get court orders in their favour.
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. 13 Chief Justice
Iftikhar Chaudhry also took thousands of sou moto cases
which provided relief and justice to the desperate people
and many families of missing people.
Judicial activism is the last refuge against an
arbitrary and irresponsible government. A vigilant judiciary
upholds the constitution, confining the legislative and
executive to their constitutional spheres. It acts as a check
against the privileged power abusers of the society i.e. the
building, crime and drug mafias, corrupt parliamentarians,
the influential ‘law molders, irresponsible law enforcement
agencies and other secret agencies.’ A benevolent judiciary
alleviates the agony of the underprivileged by providing
suo moto relief.

The dark side:

However, if judicial activism is hijacked by
individuals for personal aggrandizement and not for the
common man, then it can bring to a standstill the whole
government machinery. This was witnessed in the past.
Because of the whims and caprices of one man, the
judiciary, instead of asserting itself for upholding the
constitution, became the center stage of confrontation.
Contempt cases and political dueling became the order of
the day. Mercifully, the crises were resolved amicably. The
judicial activism also obstructs normal running of business
of government when it begins extra interventions in affairs
of the executive and begins confrontations between the two
organs of the state.

Conclusion:
Constitution-makers have meticulously defined the
functions of various organs of the State. Legislature,
Executive and Judiciary have to function within their own
spheres demarcated under the Constitution. No organ can
usurp the functions assigned to another. Judiciary has no
power over sword or the purse nonetheless it has power to
ensure that the aforesaid two main organs of the State
functions within the constitutional limits. Neither the
political executive who is responsible for laying down the
policy nor the permanent executive comprising civil
servants who are enjoined to carry out the policies of the
executive can act in any manner contrary to what the
Constitution prescribes and the law defines. When all the
three organs of the State owe their existence to the
Constitution, no single organ can claim immunity from
accountability. It is the duty of the executive to implement
faithfully the laws made by the legislature. When the
executive fails to discharge its obligations, it becomes the
primordial duty of the judiciary to compel the executive to
perform its lawful functions. Because, the constitution has
clearly made the judiciary the guarantor of the fundamental
rights of the people and given the superior judiciary wide-
ranging suo moto powers. This constitutional power of
judiciary is an affective weapon to restrain unconstitutional
exercise of power by the legislature and executive. The
expanding horizon of judicial review has taken in its fold
the concept of socio-economic justice in the country. Thus,
the judiciary is required to take judicial notice of the social
and economic ramification consistent with the theory of
law. It is the sentinel of the democracy. One must be
grateful of the fact that strong democratic traditions are
taking roots in our political system. A strong judiciary
increases the faith of the common man in the system. It also
leads to political stability and constitutional harmony.