Judicial Activism in Pakistan – History – Reasons- Merits – Demerits

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 governmental 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.
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.
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.

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.

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 mediais
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.

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.

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

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.
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.
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.
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. It’s
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 won’t yield well even if it is materialized.
It is so because the new members won’t be experienced and efficient. They will need time to gain
the experience or show their efficiency as there is no guarantee of their tenure’s completion.
Moreover, they won’t 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 judiciary’s 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 don’t 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 Pakistan’s 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 Pakistan’s judiciary that people don’t 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 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.
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.