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Last updated: Oct 2018

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Essay on
Judicial activism in Pakistan
Outline:
1. Introduction
2. The constitutional provisions and jurisdictions of the judiciary
3. Fundamental rights and the issue of taking suo moto action by the supreme judicial
authority.
4. The underlying reason of government for not favoring the Supreme Court taking such
actions.
5. Opposition’s support for judicial activism
6. The debate on ‘judicial activism versus judicial restraint’ and the Indian judicial activism
7. The legal position
8. The best way to dampen the judicial activism is the ‘Good governance.’

Along with legislature and Executive, Judiciary is the third most crucial pillar of the state.
Its proper functioning ensures the smooth functioning of the state. If the justice is nonexistent or
its delivery starts suffering excessive delays it comes under the category of ‘Justice delayed is
justice denied.’ At the same time, there are other important factors which hamper in the
establishment of a stable society. These include the proper functioning of other pillars mainly the
‘executive.’ As regards judicial activism in Pakistan the Constitution of Pakistan gives ample space
to the High Courts and especially the Supreme Court to take Suo moto notice or take up petitions
from the public concerning public welfare, public interest, and fundamental rights as given in the
Constitution. Articles 37 &38, of Chapter 2 concerning the ‘Principles of Policy under Part II
concerning the ‘Fundament rights and Principles of Policy,’ of the constitution of Pakistan speaks
volumes in this respect;

37 Promotion of social justice and eradication of social evils.

The State shall:

(a) promote, with special care, the educational and economic interests of backward classes or
areas;

(b) remove illiteracy and provide free and compulsory secondary education within the
minimum possible period;
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(c) make technical and professional education generally available and higher education
equally accessible to all on the basis of merit;

(d) ensure inexpensive and expeditious justice;

(e) make provision for securing just and humane conditions of work, ensuring that children
and women are not employed in vocations unsuited to their age or sex, and for maternity
benefits for women in employment;

(f) enable the people of different areas, through education, training, agricultural and industrial
development, and other methods, to participate fully in all forms of national activities,
including employment in the service of Pakistan;

(g) prevent prostitution, gambling, and taking of injurious drugs, printing, publication,
circulation, and display of obscene literature and advertisements;

(h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case
of non-Muslims, religious purposes; and

(i) Decentralize the Government administration so as to facilitate expeditious disposal of its

business to meet the convenience and requirements of the public.

38 Promotion of social and economic well-being of the people.

The State shall :

(a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising
their standard of living, by preventing the concentration of wealth and means of
production and distribution in the hands of a few to the detriment of general interest and
by ensuring equitable adjustment of rights between employers and employees, and
landlords and tenants;

(b) provide for all citizens, within the available resources of the country, facilities for work
and adequate livelihood with reasonable rest and leisure;

(c) provide for all persons employed in the service of Pakistan or otherwise, social security
by compulsory social insurance or other means;

(d) Provide basic necessities of life, such as food, clothing. Housing, education, and medical
relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or
temporarily unable to earn their livelihood on account of infirmity, sickness or
unemployment;

These provisions of the constitution empower the Judiciary to take even Suo moto actions
when the state fails or exhibits any negligence in performing its duties and provision of facilities
to its people in accordance with the law of the land. The Chief Justice of the Supreme Court is not
the first Chief Justice to invoke the power to take notice on his own of the issues pertaining to
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public interest and public welfare or fundamental rights. The Supreme Court and the High Courts
also entertain petitions by people regarding legal grievances and enforcement of fundamental
rights. This practice can be traced back to earlier period as well. Normally the judiciary in Pakistan
does not take so many actions invoking these provisions of the constitution. But when things get
aggravated in the society, and people start suffering a lot and begin writing directly to the judiciary
for their grievances regarding malfunctioning of the government organizations and things start
appearing in the electronic media as well, and the judiciary considers that it concerns with the
violation of the Fundamental human rights then it may feel obliged taking actions at its own.
As maintained by Dr. Hasan Askari Rizvi in his article ‘Judicial activism in Pakistan,’ “The
governments do not favor the Supreme Court exercising these powers on a frequent basis. This is
mainly because they do not like any adverse comments by the judges of the superior judiciary on
governance, corruption and politicized use of state power and resources. The opposition parties
often support these powers of the superior judiciary because any adverse comments by the judges
reflect negatively on the government. The opposition feels that its perspective on governance gets
political weight if the courts also point out to weaknesses and lapses in governance and economic
management.” To augment his point of view he further narrates, “When the Supreme Court
reprimanded the PPP government (2008-2013) and removed Prime Minister Yousaf Raza Gilani
from his office for contempt of Court, the PML-N supported the decisions of the court. However,
when the current Supreme Court reprimanded the current PML-N government and gave judgments
on the Panama Papers related issues that adversely affected the PML-N leadership, the PML-N
activists turned critical of the role of the Supreme Court.” The PML-N leadership started viewing
this as judicial activism and a conspiracy against their government. The PML-N party workers
along with their leaders began targeting the superior judiciary and the military for working together
to undermine their government.
The opposition political parties are supportive of judicial activism. The people at large are
also supportive of judicial activism as it gives them relief. The only point is that such practice by
the judiciary must continue during all the governments considering it in the sole public interest as
the continued public confidence and the respect of this highest pedestal of judiciary rests with its
political impartiality, the continuance of the rule of law and safeguarding the public interest at the
supreme level.
It is however said that judicial activism is a virtue until it is accompanied by restraint and
not by excess. Hence, sometimes it gives way to a debate on ‘judicial activism versus judicial
restraint.’ However, if any public organization feels that the judiciary is exercising specific excess,
it has the right to defend in front of the court that court has no jurisdiction in that particular case
or itself is violating the law or exceeding its authority in the name of public interest and public
welfare. Whereas the counter-argument is that the Supreme Court is authorized, as mentioned
above, by the Constitution to take up issues of public interest, public welfare being directly related
to fundamental rights and feel that these are neglected by the executive for one or other reason.
As regards the views that in such cases the judiciary has no power to interfere in the
functioning of the government departments and organizations, it is very deplorable that instead of
defending their offenses/maladministration/negligence/breach of the public trust/and violation of
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their own framed rules and regulations pointed out by the judicial authorities they raise a finger on
the jurisdiction of the judiciary.
No doubt the courts are not a substitute for but a supplement to the democratic political
process, but it is also a point that the excesses done by the Executive and legislative can only be
cured by the courts. As regards the general objection against the courts that who will cure the
judicial excess. Everybody knows that the only check available is the check by the higher courts,
and in case of the cases taken up by the Supreme Court itself then the single check is self-
accountability and self-restraint.
Concerning excesses committed by the Supreme Judiciary, A.G Noorani an Indian author
and lawyer based in Mumbai in his article ‘Judicial activism’ in the Dawn July 7, 2018, while
discussing the general excesses committed by the courts refer to the excesses committed in the last
30 years to many of the Indian supreme court’s decisions states, “It has prescribed norms for
running prisons, mental homes, and women’s shelters, issued detailed instructions to the
government to implement labor laws at construction sites, ordered industries to be restarted with
mandatory financial help of state governments, reorganized admissions in medical colleges and
laid down their examination schedules, and prescribed hawking zones in metropolitan cities.”
The point is that the constitution and rules made thereunder is the prerogative of the
legislature that is the parliament. The detailed rules and regulations are to be framed by the
government in the light of the constitutional provisions. The question is if there is any violation or
the spirit of the constitution is not kept intact by the subordinate public departments while making
rules or the rules so made are violated can the jurisdiction of the judiciary be invoked? I am of the
view that it can be invoked for the reason that the spirit of the constitution has to remain supreme.
However, if the legislature feels that the Judiciary is interpreting the law against its real spirit
or acting against the law enacted by it, then it can amend or abolish the same being sole authority
to legislate. No doubt Parliament/legislature is the supreme body of any country as it decides by
enacting laws how to run the affairs of the state including the judiciary, but when the laws have
been framed, then the judiciary stands independent unless its jurisdiction is barred by way of
constitutional amendment. However, if it is a point of concern for someone that judges can’t
choose judges as it is the antithesis of democracy, then the legislature should have taken notice of
it while doing the legislation job.
The point which surfaces concerning Pakistan is that when the judiciary take notice of the
political elite while violating the spirit of the constitution or bureaucratic inefficiency
/malpractices, then it is criticized of being partisan and doing excesses. Hence, the best way out to
minimize the role of the Supreme Court and reduce its activism is that the elected government
should fulfill its obligations towards citizens in an efficient, transparent, fair and non-partisan
manner. The executive must address public grievances and protect their rights and interests by
ensuring good governance and effective management. Further, they need to ensure that corruption
and misuse of state resources on political and personalized considerations do not become a
common practice. If the governments perform their tasks keeping in view these considerations, the
scope for judicial activism will automatically be reduced.
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