Pakistan Journal of Social Sciences (PJSS)

Vol. 40, No. 4 (2020), pp. 1527-1537

Supreme Court’s Discretionary Public Interest Litigation

Jurisdiction in Constitutional Petitions: Tracing the Problem

Barkat Ali
Assistant Professor, Department of Law
The Islamia University of Bahawalpur, Punjab, Pakistan.
Email: barkatali27@gmail.com

Hafiz Aziz-ur-Rehman
Assistant Professor, Department of Law
The International Islamic University, Islamabad, Pakistan,
Email: azeez.rehman@gmail.com

Abstract:
The Constitution of Islamic Republic of Pakistan, 1973(Constitution,
1973) structured on ‘social contract’ postulate, primarily has two
major implications namely, the ‘governmental sovereign legitimacy’
and ‘guaranteeing of fundamental rights’. However, these rights could
not have been protected properly over the years for lego-political and
socio-economic reasons. Whereby, the ‘sovereign legitimacy’ of
government has been influenced constantly. Since, to avoid such
critical situation, the judiciary being bound as ‘sovereign delegatee’
rightfully developed the strategy of Public Interest Litigation (PIL) for
protecting these rights. Such strategy is in fact the outcome of
constitutional interpretation for which judicial review is used as modus
operandi. However, interpretative approaches of ‘judicial restraint’
and ‘judicial activism’ both are suffered either with ‘pro-majoritarian’
or ‘counter-majoritarian’ difficulty, and are influencing constitutional
democracy and supremacy respectively. This all is arguably because of
the lack of a judicious criterion for interpretation. This situation
ultimately influences proper protection of fundamental rights, the
objective of the PIL.

Keywords: Pakistan; Fundamental Rights; Public Interest Litigation; Judicial

Activism; Judicial Restraint; Judicious Interpretation

I. Introduction
The ‘social contract’ theory based Constitution, 1973 ensures for rights which
includes fundamental rights (Constitution 1973, Articles 8-28), rights of Islamic nature
(Constitution 1973, Article 2-A), and non-justiciable rights available in the form of
principles of policy (Constitution, 1973, Articles 29-40). This triad of provisions together
with the Article 4 of the Constitution, 1973, has broadened the concept and scope of
human rights in Pakistan. The fundamental rights have also been provided the
constitutional guarantee (Constitution, 1973, Article 8) and assured in International Law
as well (UDHR, 1948, Articles 1-30; ICCPR, 1966, Articles 1-30; ICESCR, 1966,
Articles 6-27).
1528 Pakistan Journal of Social Sciences Vol. 40, No. 4

The Constitution also affirms the enforcement mechanism for protecting

fundamental rights. In this regard provisions of Articles 184(3) and 199 of the
Constitution, 1973 confer judicial review jurisdiction on Supreme Court of Pakistan
(Supreme Court) and High Courts for provinces respectively. Such provisions guarantee
the politico-legal and socio-economic justice for all that is the spirit of the Constitution,
1973. However, constitutional and political crises, socio-economic inequalities and
adversarial justice system have severely influenced the fundamental rights and courts’
jurisdiction. Consequently, the people could not have the opportunity of access to the
courts for the protection of their rights. Such the non-observance of fundamental and
other constitutional rights has indeed influenced the sovereign legitimacy of the
government throughout the history. This situation has not merely infringed the
fundamental rights; it has been confronting with the constitutional supremacy as well.
The Superior judiciary, however being the custodian of the constitution and rights, has
always been mindful of this situation. Thus, the Supreme Court being the ‘sovereign
delegatee’ realized a need for a change in approach for protecting the rights of people
(Iqbal, 2010, 157). This indeed became essential for preserving the ‘sovereign legitimacy
of the government’ in the context of ‘social contract’ based Constitution, 1973.

Hence, Supreme Court pursued the then prevalent strategy of PIL as a viable
option providing the people, an opportunity for getting their rights protected (Iqbal, 2010,
p. 157). Such strategy was properly developed by Supreme Court in 1988 (Benazir v.
Federation, 1988). This indeed happened because of proactive interpretation in context of
enforcement of fundamental rights concerning public importance (Menski, 2000, pp. 64-
67). The underlying idea of PIL is, indeed, to overcome the hardships under formal legal
system coupled with socio-economic inequalities “which prevents the vulnerable
individuals of a society to have benefit from law and justice” (Menski, 2000, pp. 64- 67).

PIL is relatively a new concept of constitutional adjudication in the

contemporary judicial systems of developed and developing countries including Pakistan
(Kong, 2009, p. 327). It is focusing the socio-economic and political transformation
through the enforcement of fundamental rights (Benazir v. Federation 1988, p. 421). Of
course, this objective could not have been satisfied at the required standard of ‘justice for
all’ because the PIL is suffering certain issues particularly of constitutional nature (Iqbal,
2010, pp. 166; Menski, 2000, p. 30). Such issues are needed to be identified, appraised
and resolved. Therefore, this research study seeks critically to examine and explore the
answer to a question that “What are the problems affecting discretionary PIL jurisdiction
as is exercised by Supreme Court of Pakistan in Constitutional Petition?

This research study is undertaken with the objective of indentifying the PIL
problems so that such issues may be addressed for utilizing the PIL strategy properly for
protecting fundamental rights. This work is of special use for the Judiciary as this study
contemplates the problems arising from the exercise of the discretionary PIL jurisdiction.
This study is also expected to help the Legislature and Executive in understanding the
true scope of the PIL. This study provides a result oriented conclusion with
recommendations for resolving the PIL problems. It escorts to the development of a
standard criterion of interpretation necessary for developing a legitimate and sustainable
mechanism of PIL in Pakistan.
 1529
II. Research Methodology
The study undertaken is doctrinal based research. It employs the exploratory
study of primary as well as secondary sources. This method employs the descriptive
study with an appraisal of constitutional provisions relating to the subject matter of
discretionary PIL jurisdiction. For this purpose, relevant primary sources like statutory
laws including constitution, and secondary source like research articles, thesis, books etc
are analyzed. The study of fundamental rights related constitutional provisions as
provided in Constitution, 1973 raises a critical appraisal of prevalent concept of PIL. This
study attempts to identify the problems of PIL and its resolution for determining a
standard criterion for exercising the judicial review as modus operendi for interpretation.
Such pattern of study will lead us to comprehend the problems affecting the proper
exercise of the discretionary PIL jurisdiction, and put forward a result oriented
conclusion with suitable suggestions for resolving such PIL problems.

III. Literature Analysis: Tracing PIL Problem

The undertaken research theme could not have attracted the scholars as
such. Since, there is the paucity of scholarly literature exclusively concerning to the topic
of our research study. However, the case-law, and other literature relating to our research
study in one way or other, is available sufficiently. Such literature is appraised hereunder
with a view to identifying the problems frustrating the PIL objectivity of protecting the
fundamental rights in Pakistan.

A. Judicial Insight and PIL

All the relevant literature is desirable to be analyzed; however the judicial
judgments should be discussed first, as the development of PIL is the result of the judicial
jurisprudence. Such appraisal, however, is limited only to the judgments delivered by
Supreme Court in constitutional petitions under Article 184(3) of Constitution, 1973.

The Supreme Court is the guardian of the constitution including the rights of the
people. It has delivered a number of judgments concerning with different substantive and
procedural aspects of PIL. The first leading PIL related judgment appeared in Benazir v.
Federation, 1988. The Court exercised the judicial review power, as modus operandi for
PIL, and interpreted the constitution and other laws progressively.

In this case Supreme Court suggested that “the interpretative approach

should not be ceremonious observance of the rules or usages of interpretation…”
(Benazir v. Federation 1988, p. 489). It asserted for exercising the progressive
interpretative approach keeping in view ‘the object and purpose’ for which the provisions
of Article 184(3) were enacted (Benazir v. Federation 1988, p. 489).Such objectives
were, indeed, the access to justice for all segments of the society. Hence through such
liberal interpretative approach court not only extended the scope of the fundamental
rights to the other constitutional rights, it also relaxed the adversarial procedures to
guarantee the socio-economic and lego-political justice. However, the non-determination
of at least a minimum standard for judicial activism has made PIL practice defective
consequently.

Subsequent to the above case, Supreme Court started assuming discretionary

PIL jurisdiction in constitutional petitions concerning the enforcement of fundamental
rights of public importance. Among others, in Malik v. Federation, 1998, court followed
1530 Pakistan Journal of Social Sciences Vol. 40, No. 4

the liberal interpretative approach and thus opened the door of “access to justice to all”
(Malik v. Federation, 1998. p. 238) through extending the scope of right to life and
equality, to the right of access to independence of judiciary. Though, this judgment
referred for liberal interpretation, it did not establish any principle of interpretation itself.

To ensure the substantive justice, Supreme Court extended the meaning of the
right of access to justice to the right to be dealt in accordance with law and the right of
fair trail from an impartial Court or Tribunal, and thus declared the establishment of
Military Courts for civilians’ trail unconstitutional (Sh. Liaquat v. Federation, 1999, p.
652). Though the court has rightly emphasized for the pursuance of the principle of
separation of powers (Sh. Liaquat v. Federation, 1999, pp. 504,826) which may be an
appropriate criterion for avoiding the PIL problems, however, it has not sufficiently
deliberated on this point.

Supreme Court actively pursued the progressive interpretative approach on the

issue of jurisdiction, maintainability and public importance in the context of the question
of validity of National Accountability Ordinance, 1999. The Court relaxed the adversarial
procedure of locus standi, and scrutinized the said impugned Ordinance, and protected
certain fundamental rights. Though the Court avoided the unnecessarily intervention in
the domain of the other two organs of the government (Khan v. Federation (2001), p.
949), the judgment did not deliberate the extent of the principle of separation of powers.

The Court held that depriving the people particularly the underprivileged to
access the public place without payment is contrary to the right to life (Moulvi v. Capital,
2006 p. 414). Though the Court did establish a sound principle of considering the nature
of issue instead of petitioner’s status for maintainability of PIL proceedings (Moulvi v.
Capital, 2006, p. 413), it did not endeavor for determining the limitations for exercising
the discretionary PIL jurisdiction.

The Court extended the scope of judicial review “to declare that which out of
the two laws is in accordance with the Constitution” (Wattan v. Federation, 2006, p. 731)
in case of any inconsistency between the Federal and Provincial laws. Though the Court
proclaimed the judicial activism as inherent in the nature of judicial power for upholding
the constitutional supremacy (Wattan v. Federation, 2006, p. 731), nothing is said as to
the limits and extent of such judicial power for circumventing the PIL problems arising
out activism.

In the case Pakistan v. Federation (2007), Supreme Court pursued the

progressive interpretative approach having insight from the triad of provisions namely the
objective resolution, fundamental rights and principles of policy (Pakistan v. Federation,
2007, p .668). On the matter of maintainability, it held that assuming jurisdiction under
Article 184(3) is not dependent only at the instance of the aggrieved party; the locus
standi may be extended to a person acting bona fide (Pakistan v. Federation, 2007, p.
668). Though the court’s observation regarding constitution’s interpretation was of great
significance, but under what limitations and parameters, the judgment has no response.

The detention of the Chief Justice of Pakistan (CJP) and his family was
construed as the violation of the right to life, privacy of home and dignity of man. The
removal of CJP from his office was held as infringement of a fundamental right of
 1531
judicial independence, assaulting public at large. For all this Court suggested for
harmonious, careful and conscious interpretation of constitutional provisions (Chief v.
President, 2010, p. 211). Instead of all this, still there is missing of a standard criterion of
interpretation of comprehensive nature.

The Supreme Court eagerly pursued the judicial activism, and held that the
petition involving a matter of public importance relating the protection of Fundamental
Rights is maintainable (Muhammad v. Federation (2012, p. 807). Though, the court
affirmed its role of interpreting the constitution for enforcing fundamental rights, it
asserted the exercising of this function within the principle of separation of powers
(Muhammad v. Federation, 2012, p. 811). Yet, there is missing of explaining the extent
for separation of powers in context of judicial review jurisdiction as exercised for
discretionary PIL jurisdiction.

In Maulana v. Government (2013), Supreme Court established the case of

violation of fundamental rights involving the question of public importance. The Court,
indeed while taking the cognizance of the matter, exercised the judicial review
jurisdiction proactively in the context of the PIL (Maulana v. Government 2013, p. 767).
Though judiciary asserted for the exercising of judicial review subject to the separation of
powers, but did not determine the scope for observing the principle of separation of
powers.

In Farooq v. Federation (1999) proclamation of emergency, was held justified,

and in this regard the court “showed visible signs of retreat in its PIL activism” (Khan,
2014, p. 314). The same judicial trend appeared in Syed v. General, 2000. Supreme Court
did not construe the constitution proactively for extending the scope of fundamental
rights, despite considering it a case raising questions of great importance. However, the
court rightly observed that “judicial review must remain strictly judicial and judges must
take care from intruding upon the domain of the other branches of government” (Khan,
2014, pp. 1123, 1214). Likewise Supreme Court criticized unfettered judicial interference
into the jurisdiction of the other organs of the government (Tika v. General 2008, pp.
178, 267 and 270). This was, indeed the practice of judicial restraint but the court could
not determine the parameters for exercising such judicial policy in PIL matters.

B. Juristic Perception and PIL

Academicians and researchers have also contributed for the growth and expansion
of PIL in Pakistan. Among others, Asghar, in his work ‘Public Interest Litigation: A Tool
to Protect Fundamental Rights’ (2011) highlights the contribution of judicial
jurisprudence for the development of PIL for the protection of fundamental rights. He
has discussed very briefly the leading judgment of Benazir Bhutto (1988) case along with
other cases wherein the dictum as laid down in this was followed. However, this study is
not comprehensive as the author neither attempted to find out the PIL problems, nor
suggested any constitutional parameters for exercising PIL jurisdiction.

‘Public Interest Litigation’ (2012) by Qaiser, is the study relating to the judicial
contribution for the growth of the PIL. This work simply revealed the constitutional
provisions empowering the Supreme Court for exercising PIL jurisdiction. There is no
mention as to the constitutional parameters for using the PIL jurisdiction.
1532 Pakistan Journal of Social Sciences Vol. 40, No. 4

Alam in his research work, ‘Public Interest Litigation and Role of Judiciary’
(2013) analyzed the judicial role for the growth of PIL. He classified the PIL cases as
pure PIL, and PIL under regular petitions converted into PIL cases. Though he has rightly
concluded that distinctive characteristics of PIL could not have been marked properly,
(Alam, 2013, p. 13), he did not identify the reasons behind such issue, and solution
thereof.

Amanullah in his research paper, “Public Interest Litigation in India and

Pakistan: Innovate Approaches to Refuse Standing” (2013), made comparative study of
relaxing the locus standi in the context of Indian and Pakistani. Though the author has
identified the problems and reasons thereof, but he did not discussed the parameters for
judicial review used as modus operandi for PIL.

‘The Right to Development in International Law: The Case of Pakistan’ (2010) by

Iqbal, is a PhD thesis in a published book form. In this work author has discussed the
‘Public Interest Litigation: Prospects for the RTD’ as sub-topic. He has presented the
conceptual basis and an analysis of case law. Though, the author has fairly highlighted
the PIL problems, the suggestions to resolve these problems are missing therein.

‘Public Interest Litigation in the Supreme Court of Pakistan’ (2007) is LLM

research thesis by Munir. This study is limited only to the Supreme Court’s powers of
PIL. This study has not been made in jurisprudential viewpoint; it is just a presentation of
Article 184(3) as an enabling provision for PIL jurisdiction (Munir, 2007, v). This study
did not focus the exercising of discretionary powers, and problems thereof.

‘Public Interest Litigation in Pakistan’, (2000) by Menski, et al., is the basic

research work on the subject of PIL in Pakistan. There are four research works in this
book, namely, ‘Introductory Overview of Public Interest Litigation in Pakistan: Past and
Future’, ‘Public Interest Litigation: A strategy for the Future’, both by Menski, ‘The Law
of Public Interest Litigation in Pakistan’ by Alam, and ‘The Reviewing the Law of Public
Interest Litigation in Pakistan’ by Raza. There is the discussion and analysis of the
circumstances because of which the idea of PIL emerged in Pakistan. This work has
discussed the contribution of judges and scholars for the development of PIL strategies. It
has an analytical discussion about PIL in the context of Islam, legal education and future
legal developments in Pakistan. The authors have focused on the constitutional
framework within which PIL has evolved. They have focused on the current dimensions
of PIL, and this analysis is somewhat in comparative perspective with other jurisdictions,
with a view to ascertaining future prospects of PIL in Pakistan. However, none of the
above works in the said book has a discussion concerning the constitutional limitations
for regulating the discretionary PIL powers in Pakistan.

The book, ‘The Role of Islam in the Legal System of Pakistan’ (2006) by Lau,
contains a valuable discussion of Islamic based judicial discourse on PIL (Lau, 2006,
Chapter, 4). This work analysis the judicial powers in expanding the scope of
fundamental rights in context of Islamic Law in Pakistan. There is a good discussion of
case-law contributing for the development of PIL particularly engaging Islamic issues on
PIL. However, there is a deficit of discussion on PIL problems and resolution thereof.
 1533
‘Public Interest Litigation Scope and Problems’ (2010), is a Report of Human
Rights Commission of Pakistan (HRCP). The participants of the seminar have rightly
shown their concerns as to the missing of discussion regarding meaning, significance,
principles of PIL and criterion for the use of PIL in judicial jurisprudence. They asserted
for determining of the principles and limitations for the PIL jurisdiction. However, they
could not have highlighted the problems particularly for exercising discretionary PIL
jurisdiction, and guidelines therein.

In another seminar on the topic of ‘Public Interest Litigation: Scope, Limitations

and Reforms’ (2012), it was acknowledged that judiciary is justified to step in for
protecting fundamental rights where government is not responding properly. The
participants focused on the development of PIL principles for its proper use. They,
however, did not mention about the problems of discretionary PIL jurisdiction, and the
principles required for proper exercise of discretionary PIL jurisdiction.

After the brief review of the above selected case-law and other relevant literature
on PIL related matters, it may be concluded that the judicial dicta as well as the
academic literature, both are devoid of the deliberations for identifying the PIL problems,
and resolution thereof concerning the exercising of discretionary PIL jurisdiction. So, this
gap concerning PIL is intended to be filed through this study intending to indentify and
appraise the problems, and determine the principles for the modest interpretative
approach within the constitutional parameters to resolve PIL problems.

IV. The PIL Problem: Reasons and Nature

PIL in Pakistan is indeed, the result of judicial review based constitutional
interpretation. Such judicial review is exercised as modus operandi for the enforcement
of fundamental rights including the other consequential rights as well through PIL
strategy (Benazir v. Federation 1988, p. 489,490). Through such interpretation the
strategy of PIL, however, was derived impliedly from the provisions of Constitution,
1973. The principle of judicial review is a generally recognized constitutional mechanism
for the protection of human rights (Syed v. General, (2000), p. 1121) through
safeguarding the constitutional supremacy. Yet, the prevalent interpretative approaches,
i.e., judicial activism and restraint as exercised for judicial review purpose, have appeared
incompatible to the constitutionalism.

Both of the above two approaches are discretion-based; so, a specific criterion for
interpreting the law including the constitution could not have been established. So, the
matter of interpretation is still in debate and this controversy is since the early
development of the principle of judicial review (Calder v. Bull, 1798). Presently, it has
become more debatable in judicial review based-PIL strategy suffering certain
constitutional issues, and other drawbacks (Menski, 2000, p. 66; HRCP 2010, p. 23).
Among others the problems of ‘counter-majoritarian’, (Ackerman, 1989; Friedman, 1998)
and ‘pro-majoritarian’ (Barrett, 2012, Kastellec, 2016, Dixon and Williams, 2015) are the
fundamental concerns surfacing from the said prevailing conventional interpretative
approaches while used for discretionary PIL jurisdiction.

The judicial activism is argued to ensure the protection of the fundamental which
otherwise would have been disturbed by the governmental functions in the name of the
‘majority rule’. Such activism is in fact the proactive interpretative approach which may
1534 Pakistan Journal of Social Sciences Vol. 40, No. 4

ensure the protection of human rights, and as such the sovereign legitimacy of
government may be maintained as mandated by a ‘social contract-based constitution’ of
1973. It is, also appreciated for limiting the functioning of political branches within the
constitutional mandate, necessary for the constitutional supremacy.

Yet, for judicial activism, judiciary is alleged for exercising its jurisdiction beyond
constitutional mandate. Such judicial power is criticized because of the apprehension of
judicial intervention in the constitutional domain of legislative and executive organs of
the government. Therefore, the judiciary is not justified to scrutinize the functioning of
both of these two democratic branches established on ‘majoritarian assumption’. Rather,
it is obliged to recognize the constitutional mandate of legislature and executive having
the legitimate representative character (Vriend v. Alberta, 1998, Paragraph 136).
Furthermore, the judiciary has no democratic character. Its judicial powers are subject to
the majority will in term of laws which confer the judicial jurisdiction. Thus, judicial
activism is understood to be, essentially ‘counter-majoritarian difficulty’ affecting the
constitutional democratic governance.

On the other side judicial restraint is suspected for ‘pro-majoritarian difficulty’

which ultimately may result the compromising of justiciability of fundamental rights and
constitutional supremacy. The courts avoid for examining the measures of the
government on the touch stone of constitution. Though the critics have argued for such
judicial trend for upholding the ‘majoritarian rule’ and democratic governance (Shemtob,
2011, 1, 6, 7, 260), this viewpoint has rigorous repercussion for maintaining the
constitutional supremacy (Sunstein, 2007, pp. 335 and 345; Shemtob, 2011, pp. 1, 8 and
9; Posner, 2012, pp. 519,523,524).

Such judicial trend is unconstitutional because the judiciary is always bound by its
nature of job and constitutional mandate to safeguard the constitution including the
fundamental rights. Otherwise, the sovereign legitimacy as pledged by a ‘social contract-
based constitution’ may be at stake.

As discussed above, the ‘counter-majoritarian’ and the ‘pro-majoritarian’

difficulties emerging from discretion-based judicial activism and judicial restraint in one
way or other are impeding the PIL objectives. These two difficulties are the primary
reasons for the other subsidiary PIL problems. Judicial activism as well as the restraint
both of these two traditional interpretative approaches as exercised, is incompatible with
the spirit Constitution, 1973.

The Supreme Court though have asserted for the enforcement of fundamental
rights through the strategy of PIL, the judicial review power both on substantive and
procedural matters could not have shaped a judicious criterion. The judicial jurisprudence
is devoid of the adoption of a standardized and constant interpretative approach for
addressing the enforcement of fundamental rights. In some cases (Farooq v. Federation,
1999; Syed v. General, 2000; Wasim v. Federation, 2001; Tika v. General, 2008)
Supreme Court has been reluctance for examining the actions of political branches of
government. Whereas in other cases, Supreme Court proactively formulated progressive
guidelines and directions. Such state of affairs has endorsed the uncertainty either in
term of the process that is assumed, or for discriminatory use of judicial powers,
 1535
or for extending court’s jurisdiction to the domain of other branches (HRCP, 2010, p.
29).

The above situation is, possibly, because of the missing of a judicious standard
regarding the use of discretionary PIL jurisdiction. Such circumstances eventually affect
the PIL objective of protecting human rights. There are serious apprehension for the
absence of a standard criterion for exercising the extraordinary judicial power in cases of
PIL, and the legitimate use of PIL (Iqbal 2010, p. 166; Menski, 2000, p. 105; HRCP,
2010, pp. 23, 26). Hence, the constitutionality of PIL has become contentious which
needs to be addressed for making the PIL strategy acceptable for all.

V. Conclusion
Article 184(3) was inserted in the Constitution 1973 for the first time in the
constitutional history of Pakistan. It relates to the original jurisdiction of the Supreme
Court, intending to ensure the protection of fundamental rights of public importance. For
such purpose Court’s jurisdiction is invoked through the constitutional petition under
adversarial context. This provision, however, is open-ended and provides a chance for
exercising the judicial discretion while entertaining the constitutional petitions. The
judicial practice of exercising of such jurisdiction has developed the strategy of PIL.

PIL in early days had judicious beginnings. Subsequently, it, however, suffered
with judicial populism referred to as judicialization of politics. All this happened because
of judicial activism which was suffering the mindset of judicial overreach. The judicial
practice of PIL has also shown the judicial restraint not warranted by the constitutional
mandate. The principle of judicial restraint as practiced by the judiciary has not been in
a sense of restraining from activism. Rather, it has appeared a passive virtue of ‘self-
restraint’ type.

Both of these approaches of activism and restraint categories, however, were

involving political questions which suffered the judiciary in judicialization of politics.
This situation has made the exercise of the discretionary PIL jurisdiction controversial
affecting ultimately the PIL objectives of protecting fundamental rights.

So, our research does suggest that the judicial review should be neither the
activism as judicial over reach, nor judicial restraint in term of self restraint. Rather, it
should be ‘proper judicial activism and restraint’ preserving the ‘structure of
constitutional’ which includes the ‘separation of powers including checks and balances’
as limitation for exercising of discretionary PIL jurisdiction. The pursuing of such
limitations is indispensable for developing a judicious criterion of interpretation
necessary for the proper use of PIL. Of course, the Constitution, 1973, has the potential
for these required limitations in term of ‘separation of powers including checks and
balances’ for avoiding PIL problems in Pakistan.

References
Legislation
The Constitution of Pakistan, 1973.
The International Covenant on Civil and Political Rights, 1966.
The International Covenant on Economic, Social and Cultural Rights, 1966.
The Universal Declaration of Human Rights, 1948.
1536 Pakistan Journal of Social Sciences Vol. 40, No. 4

Case-Law
Benazir Bhutto v. Federation of Pakistan [1988] PLD SC 416.
Chief Justice, Iftikhar Muhammad Chaudhry v. President of Pakistan [2010] PLD SC 61.
Calder v. Bull [1798] 3 U.S. (3 Dall.) 386.
Farooq Ahmed Khan Leghari v. Federation of Pakistan [1999] PLD SC 57.
Khan Asfand Yar Wali v. Federation of Pakistan [2001] PLD SC 607.
Malik Assad Ali v. Federation of Pakistan [1998] PLDSC161.
Maulana Abdul Haque Baloch v. Government of Balochistan, [2013] PLD SC 641.
Moulvi Iqbal Haider v. Capital Development Authority [2006] PLD SC 394.
Muhammad Azhar Siddiqui v. Federation of Pakistan [2012] PLD SC 774.
Pakistan Muslim League (N) v. Federation of Pakistan [2007] PLD SC 642.
Sh. Liaquat Hussain v. Federation of Pakistan [1999] PLD SC 504.
Syed Zafar Ali Shah v. General Pervez Musharaf [2000] PLD SC869.
Tika Iqbal Muhammad Khan v. General Pervez Musharaf [2008] PLD SC 178.
Vriend v. Alberta [1998] 1 S.C.R. 493.
Wasim Sajjad v. Federation of Pakistan [2001] PLD SC 233.
Wattan Party v. Federation of Pakistan [2006] PLD SC697.
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Ackerman, Bruce. (1989).The Storrs Lectures: Discovering the
Constitution. Yale Law Journal, 93, 1013-1072.
Amanullah. (2013). Public Interest Litigation in India and Pakistan:
Innovate Approaches to Refuse Standing. Journal of Quality and Technology
Management, Vol. 9, Iss.2, 91-105.
Asghar, Abdus Sattar (2011).Public Interest Litigation: A Tool to Protect
Fundamental rights, Pakistan Law Journal, Magazine, 527-534.
Barrett. Lain, Corinna. (2012). Upside-Down Judicial Review.
Georgetown Law Journal, Vol. 101, 113-183.
Sunstein Cass, R. (2007). Backlash’s Travels. Harvard Civil Rights-
Civil Liberties Law Review, 42, 335-449.
Friedman, Barry. (1998). The History of the Counter-majoritarian
Difficulty, Part one: The Road to judicial Supremacy. New York University Law Review,
73, 333-573.
Kastellec Jonathan P. (2016). Empirically Evaluating the Counter-
majoritarian Difficulty :Public Opinion, State Policy, and Judicial Decisions Before Roe
v. Wade. Journal of Law and Courts, 4(1), 1-42.
Kong, Karen. (2009). Public Interest Litigation in Hong Kong: A New
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Posner Richard, A. (2012). The Rise and Fall of Judicial Self-Restraint.
California Law Review, 100, 519-556.
Qaiser Khadim, Hussain. (2012). Public Interest Litigation. Pakistan
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Books
Dixon, Rosalind & George Williams. (2015). The High Court, the
Constitution and Australian Politics. Cambridge University Press.
Iqbal, Khurshid. (2010). The Right to development in international law,
the case of Pakistan. London: Rutledge Taylor Francis Group.
Lau, Martin. (2006). The Role of Islam in the Legal System of Pakistan.
Leiden: Koninklijke Brill NV.
Menski, Werner. (2000). Public Interest Litigation in Pakistan. Karachi:
 1537
Pakistan Law House.
Research Thesis
Munir Muhammad, Amir. (2007). Public Interest Litigation in the Supreme Court
of Pakistan (LL. M dissertation). University of Punjab, Lahore, Pakistan.
Report
Human Rights Commission of Pakistan. (2010). Public Interest Litigation Scope
and Problems. Human Rights Commission of Pakistan, Lahore, Retrieved November 19,
2013, hrcp-web.org/hrcpweb/wp-content/pdf/ff/26.pdf
Websites
Alam Ahmed, Rafay. (2013, November 9). Public Interest Litigation
and Role of Judiciary.
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Khan Maryam, S. (2014, August). Ambiguous Ambitions,
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fundamental-rights-without-overstepping-its
Seminar. (2012). Public Interest Litigation: Scope, Limitations and Reforms.
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Shemtob Zachary Baron. ( 2011).Following Thayer: The Conflicting Models of
Judicial Restraint. Retrieved from http://ssrn.com/abstract=2029687