Judicial Activism in Pakistan

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Scholarship Description:

Judicial Activism in Pakistan is open for . The scholarship allows level programm(s) in the field of taught at . The deadline of the scholarship is .

Introduction:

The advent of parliamentary democracy in 1985 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 print media is growing in the exuberance of total freedom, a luxury it has never enjoyed in Pakistan’s history. A participatory and democratic polity has integrated all foci of separatism in Pakistan. For the first time, there is no active secessionist movement in any of Pakistan’s provinces. 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.

Our higher judiciary has condoned, at various times, the dissolution of the first Constituent Assembly and the proclamation of martial laws in 1958, 1969 and 1977. 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.

What is judicial Activism?

Before we dwell on the causes and features of judicial activism, let us first understand what it is. A modern democratic state is built on the principle of
tracheotomy of powers, i.e. the judiciary, executive and legislature have to perform their won designed functions.

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.

Explanation:

Legislating from the bench is a good way to describe judicial activism. Judicial
activism occurs when a Judge or Justice decides an issue based on personal or political ideology or pressure from special interests instead of abiding by the Constitution and/or previous precedent.

It makes sense that the judiciary, which is appointed rather than elected and held accountable by the people, does not have the ability to legislate. When judicial activism occurs, it is a usurpation of power. In other words, judicial activism means a Justice oversteps the jurisdiction of the Court or creates a ruling that radically diverges from common law, jurisprudence, and the intent of the Constitution.
Judicial activism may also be a case of Judges or Justices overruling existing law or creating legal doctrines without precedent or support, which undermine or recreate policy, usually social policy.

While a judge who engages in judicial activism does not technically write a law, he or she often creates the same effect by handing down a ruling that allows or prohibits a certain action.

Origin:

Historically, the architect of Judicial Activism was Chief Justice John Marshall of the United States. In two landmark cases, Marbury vs Madison and Mccullough vs Maryland, he laid the foundation of the doctrine of Judicial Review i.e. the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not. In the 1930’s, Roosevelt’s attempts to pack the supreme court with his favorites back fired.

Debate:

Detractors of judicial activism charge that it usurps the power of the elected
branches of government or appointed agencies, thereby damaging the rule of law and democracy. They argue that an unelected or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution. In some instances, government regulation by appointed officers in government agencies are overturned by elected judges.

Defenders of judicial prerogatives say that many cases of so called "judicial
activism" merely exemplify judicial review, and that courts must uphold existing laws and strike down any statute that violates a higher law. They say that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political sentiments of the day, and that constitutional democracy is far more than just transient majority rule.] It is common for the charge to arise simply because one disagrees with a certain ruling regardless of where the majority at the moment stands.

However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges presently say it should be. Defenders counterclaim that indeed this is precisely what the role of the judiciary is, namely to interpret the law. Detractors argue that the discretion of judges must be limited e.g. by the intentions of lawmakers and appointed or elected government officers , or else any group of people engaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of elected or appointed judges.

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e. there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect the view the transient majority may have had at the moment of passage and not
necessarily the view the same legislative body may have at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

Judicial Activism in Pakistan:

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.

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. The 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 has declared as invalid several provisions of the controversial Anti Terrorism Act (ATA), and asked 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 Act
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 has ordained the jurisdiction of the High Courts over the special courts established under the ATA, 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.

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.

The Bright Side:

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 and the influential ‘law molders.’A benevolent judiciary alleviates the agony of the underprivileged by providing Suo Moto relief.

The Dark Side:
However, if judicial activism is hijacked by individuals for personal aggrandizement and not for the common man, then it can bring to a standstill the whole government machinery. This was witnessed recently. 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.

However, it was instructive. Judicial activism was well received and admired when it was exercised in public interest. However, when activism was turn into a personal vendetta even after the five judges had been appointed to the Supreme Court, public opinion decidedly tilted against the Chief Justice.

Conclusion :

It is heartening that judicial activism has come to stay in Pakistan. However, we still need to remove constitutional lacunae that impinge on the freedom of the judiciary.

Conscientious judges can be dumped in the Federal Shariat Court. Benches of
“troublesome” High Court judges can be changed by executive fiat. All these
provision need to be removed from the constitution. Also, we need to expand the judiciary to dispose off the backlog of pending cases.

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.

Degree Level:

Judicial Activism in Pakistan is available to undertake level programs at .

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