11/24/23, 11:54 PM A discourse on Judicial Activism

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A discourse on Judicial Activism

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Mohsin Raza Malik February 14, 2018

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The Supreme Court of Pakistan has been in the limelight since the then CJP
Justice Anwar Zaheer Jamali formally took up the Panamagate case in
November 2016. Having disqualified some prominent parliamentarians like
Mian Nawaz Sharif and Jahangir Tareen, now the apex court is all set to initiate
some intensive contempt of court proceedings against the PML(N)’s firebrand
leaders. However, apart from these Panamagate and post-Panamagate
proceedings, the apex court has also become a focal point of the public
attention these days on account of a volume of cases which are being
collectively dubbed as ‘public interest litigation’. During the last few months,
the incumbent CJP Justice Mian Saqib Nisar took a large number of Suo Motu
actions vis-à-vis various ‘matters of public importance’. At present, this sort of
‘Judicial Activism’ has somehow become one of the most dominant
characteristics of the superior judiciary in Pakistan.
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The so-called judicial activism has resulted in establishing the institutional

superiority of the superior judiciary in the country. By exercising its
extraordinary jurisdiction under Article 184(3) of the Constitution, now it can
disqualify the legislators in addition to show the country’s chief executive the
door. It can also exercise this extraordinary constitutional jurisdiction on its
own motion by taking Suo Motu actions against any person in the hierarchy of
the executive branch of the government throughout the country. Over a period
of time, the apex court has tended to exercise its Suo Motu jurisdiction
excessively and rather aggressively. Former CJP Iftikhar Muhammad Chaudhry
was best known for his self-styled judicial activism. He took as many as 118
Suo Motu actions during his chief justiceship.

By taking more than two dozen Suo Motu notices in a single month, the
incumbent CJP Main Saqib Nisar appears to have outperformed the former
CJP Iftikhar Muhammad Chaudhry. For the last few months, the apex court
has taken a large number of Suo Motu actions on a variety of issues ranging
from the contaminated drinking water and substandard milk to extra-judicial
killings, rape-cum-murder incidents of minor girls, illegal constructions,
blockade of roads for VVIP movements, security barriers in public streets,
Axact fake degree scam, laundered money of Pakistanis in foreign accounts,
sale of substandard and expensive coronary stents, high fees charged by
private medical colleges, and lack of health facilities at public hospitals, police
encounters in Punjab etc. A lot of people are currently appreciating and
strongly approving the apex court’s pro-active attitude to safeguard public
Interests in the country. On the other hand, many people consider this judicial
practice as an encroachment upon the authority of the executive. Therefore,
they are of the view that the superior judiciary should remain within its
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constitutional domain. Notwithstanding this legal debate, the universally-

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recognized principle of ‘separation of powers’ appears to have been

compromised in Pakistan. This sort of assumption of executive authority by
the apex court through the excessive exercise its Suo Motu jurisdiction has
somehow given rise to a novel notion of ‘Judicial Executivism’ in the country.

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The extraordinary jurisdiction exercised by the apex court under Article 184(3)
of the Constitution to take a Suo Motu action is generally explained in terms of
some popular legal notions like ‘Judicial Activism’ or ‘Public Interest Litigation
(PIL)’. However, sensu stricto, this practice is hardly related to either of these
notions. Judicial activism is a legal term that refers to the judicial decisions
that are partially or fully based on the judges’ personal or political
considerations, rather than existing laws. Black’s Law Dictionary defines
judicial activism as a “philosophy of judicial decision-making whereby judges
allow their personal views about public policy, among other things, to guide
their decisions”. Judicial activism is also considered to be an aggressive
approach to the exercise of judicial review, in which judges are more inclined
to invalidate legislative or executive actions. So, just like the judicial review,
the origin of judicial activism can also be traced to the American
constitutional jurisprudence.

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In the first half of the 20th Century, the US Supreme Court tended to interpret
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laws conservatively, giving rise to the phenomenon of judicial activism in the

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United States. Therefore, the conservative judges of the Supreme Court just
struck down the New Deal, a progressive economic legislation introduced by
President Franklin D. Roosevelt in 1930’s. In fact, this legal approach has been
controversial since its beginning. ‘Judicial restraint’ is an antonym of judicial
activism. Judiciary restraint is another substantive approach to the exercise of
judicial review, whereby the judges are required to narrowly interpret laws
while adhering to prior interpretations, rather than making decisions based
on their personal or political views. The goal of judicial restraint is largely to
maintain a balance within the governmental branches. Thus the judicial
activism and judicial restraint are nothing but two conflicting approaches to
the exercise of judicial review by the judiciary. Therefore, judicial activism is a
legal notion essentially related to the judicial process. It, by no means,
authorizes the judiciary to unnecessarily interfere in the administrative
domain of the executive branch of the government.

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Public Interest Litigation (PIL) means the litigation for the protection of public
interest. The Constitutions of both India and Pakistan contain certain
provisions relating to public interest litigation. Article 32 of the Indian
Constitution allows individuals to approach the Supreme Court to seek
redressal for the violation of their fundamental rights. In Pakistan, Article 199
of the Constitution relates to public interest litigation. It empowers the
provincial High Courts to issue certain writs to safeguard the legal rights of
individuals against the unlawful or arbitrary executive actions. Similarly,
Article 184(3) of the Constitution extends similar powers to the Supreme Court
of Pakistan if there is a “question of public importance with reference to the
enforcement of fundamental rights”.
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Interestingly, the apex courts in both India and Pakistan are exercising Suo
Motu jurisdiction vis-à-vis public interest litigation despite the fact the
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constitution of neither country contains the term ‘Suo Motu’, or otherwise

explicitly empowers the apex court to take an action ‘on its own motion’. In
fact, it is only the so-called judicial activism in India which has given rise to
the crucial legal notions like ‘Suo Motu actions’ and Basic Structure of the
Constitution’. Probably inspired by India, the superior judiciary in Pakistan
also incorporated both legal notions into the country’s constitutional
jurisprudence. However, the Supreme Court of Pakistan just discarded the so-
called Basic Structure of the Constitution thesis through its landmark
judgment in 2015 in the wake of establishment of military trial courts, while
upholding the 18th and 21st amendments in the Constitution made by the
parliament. Now, the Suo Motu jurisdiction exercised by the apex court also
needs serious consideration. India and Pakistan are the only two significant
countries in the world, where the apex court exercises this sort of unusual and
rather controversial jurisdiction.

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Based on the principle of ‘Trias Politica’, the doctrine of Separation of Powers

essentially maintains that all three branches of the government- the executive,
the legislature and the judiciary- should wield their powers separately and
independent of each other. Like many other countries, this principle of
trichotomy of powers also occupies a pivotal position in the constitutional
jurisprudence in Pakistan. The Constitution has exhaustively elaborated the
powers and functions of each organ of the government. Therefore, each organ
is supposed to maneuver within its constitutional domain. As there is a
parliamentary form of government in Pakistan, the executive branch of the
government can’t effectively be separated from the legislature. However,
Article 175(3) of the Constitution ensures the separation of executive from the
judiciary in Pakistan.
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Most of the arguments favoring the exercise of Suo Motu jurisdiction by the
apex court primarily revolve around a single point i.e. the malfunction or non-
function of the executive branch of the government. Indeed, the incompetent
and inefficient executive has created an administrative vacuum which is being
tried to be filled by the judiciary now. However, this argument can hardly
justify the unnecessary judicial encroachment upon the executive. Two
wrongs certainly don’t make a right. Most of the military interventions in
Pakistan have been justified on similar grounds. As a matter of fact, the
performance of the judiciary is by no means better than that of any
subordinate department of the executive in Pakistan. The establishment and
continuance of military trial courts speak volumes about the miserable state of
our criminal justice system. It is high time the superior judiciary should focus
on improving the dilapidated state of the justice system in the country rather
than trying to overhaul the executive. Indeed, one should be just before
claiming to be generous.

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik

Tags: discourse judicial activism

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