The following article, “Judicial Activism Vs Judicial Overreach: A Case Study of Pakistan”, is written by Amira Taj, a student of Sir Syed Kazim Ali. Moreover, the article is written on the same pattern, taught by Sir to his students, scoring the highest marks in compulsory subjects for years. Sir Kazim has uploaded his students’ solved past paper questions so other thousands of aspirants can understand how to crack a topic or question, how to write relevantly, what coherence is, and how to include and connect ideas, opinions, and suggestions to score the maximum.
2-Debunking the terms ‘Judicial Activism’ and ‘Judicial Overreach’
3-Scope of Judicial activism in Pakistan
4-Significance of Judicial activism
5-Historical background of judicial activism in Pakistan
- ✓Maulvi Tamizuddin case in 1953
- ✓Darshan Mashi vs. the State
6-How is judicial activism different from judicial overreach?
6.1-Case studies in terms of Judicial Activism
- ✓Asma Jilani case, 1972
- ✓Privatization of Pakistan Steel Mill Case, 2005
- ✓The Lawyers’ Movement 2007 and Restoration of Chief Justice Iftikhar Chaudhry
- ✓Lal Masjid case, 2007
6.2-Instances of Judicial Overreach
- ✓Use of “Doctrine of Necessity”
- ✓Tenure of Chief Justice Iftikhar Chaudhry
- ✓Tenure of Chief Justice Mian Saqib Nisar
- ✓Disqualification of the Prime Minister Syed Yousaf Raza Gillani in 2012
7-Challenges posed by Judicial Activism and Judicial Overreach
- ✓Habitual Scrutiny by Frequently use of Suo Motu Power
- ✓Encroachment on the Power of Legislative and Executive bodies
- ✓Controversial Political Decisions
8-Recommendations/suggestions/need for Balancing Judicial Activism and overreach
- ✓To exercise Judicial Restraint
- ✓To properly guide to Provoke Suo Motu Power
- ✓To ensure judicial accountability
- ✓To practice the system of Separation of Powers
Answer to the Question
Judicial activism, a broader term, refers to the judicial review process, as superior courts possess constitutional authority to decide on the constitutionality of legislative and executive actions, constitutional provisions, and amendments. This legal instrument empowers the judiciary to invalidate all unconstitutional actions and policies of the legislative and executive authorities. Similarly, the Supreme Court of Pakistan is exercising this power to check the arbitrariness of the government’s various actions and policies. Although the practice is not new in Pakistan, it spans from the famous and landmark Maulvi Tamizuddin case in 1953 to the present-day Supreme Court Practice and Procedure Bill 2023 case. The term gained prominence after 2007, mainly due to the active role played by the then Chief Justice Iftikhar Chaudhary and the lawyers’ movement. However, Supreme Court judges are often criticized for interfering with government policies and invalidating them on diverse grounds. Critics say the Supreme Court overreaches jurisdiction by interrupting the state’s affairs, harming democratic values. This essay will explore the history of judicial activism in Pakistan from its birth until now and the question of whether judicial activism by the Supreme Court of Pakistan has improved the executive’s role and safeguarded democracy or whether it has facilitated military regimes by declaring judgments based on the theory of “the doctrine of Necessity”.
Understanding the terms, ‘Judicial activism’ is defined as the active role of judges in shaping and interpreting the laws to safeguard the people’s fundamental rights, ensure justice, protect societal interests, and fill the gaps left by the legislative branch. On the other hand, judicial overreach occurs when the judiciary oversteps constitutional boundaries and infringes upon the authorities of executive and legislative bodies. Both concepts involve judicial engagement, but the crux lies in how the judiciary expands its impact.
Exploring the scope of judicial activism dates back to the landmark judgment of Darshan Mashi vs. the State. In this famous case, the Chief Justice of Pakistan took notice of a telegram message in which the applicant complained about the unlawful detention of labourers in brick kilns against his employer and requested their release. The then Chief Justice of Pakistan bypassed the procedural requirement and implemented his suo moto power under Art. 184(3), declaring forced labour illegal because it was a clear violation of fundamental rights. Thus, the term’ Judicial Activism’ became dominant in the era of Chief Justice Iftikhar Muhammad Chaudhry (2007-2009) in this way.
Focusing on the significance of judicial activism, the Supreme Court of Pakistan serves as the guardian of the constitution, playing a pivotal role in protecting the fundamental rights outlined in the Constitution of Pakistan, 1973. Additionally, the constitution endows the Supreme Court with original, appellate, advisory, and review jurisdictions under articles 184, 185, 186, and 188, respectively. Art. 184(3) of the constitution provides SC with suo moto power by stating that if SC considers it appropriate, it shall take notice of fundamental rights and public importance concerns and decide the matter by itself. However, the Supreme Court has all the authority to take action and issue appropriate directions in response to infringements of fundamental rights and violations of public interest at large by using its original jurisdiction. Hence, judicial activism in Pakistan holds profound significance in shaping and developing a just and equitable society. This proactive stance by the judges works as a dynamic force for preserving constitutional values and promoting the concept of checks and balances within the democratic state.
Analyzing the following case studies helps one understand the profound impact of judicial activism and overreach in Pakistan. First, the Asma Jilani case of 1972 is a cornerstone of the proactive role of the judiciary in protecting fundamental rights and interpreting constitutional provisions during the phase of political tumultuousness in Pakistan. This case reinforced the rule of law and the legal system as a stronghold against the arbitrary actions of the executive and legislative bodies. Therefore, the judiciary plays a crucial role as a guardian of constitutional provisions.
Next, in the 2005 case concerning the privatization of Pakistan Steel Mill, the steel mill workers’ union lodged a petition against the government, alleging corruption and contesting the legitimacy of the steel mill’s privatization. The key contentions in the petition included assertions that the privatization process lacked transparency; the share prices were undervalued, and specific provisions of the Privatization Ordinance 2000 were ultra vires to Articles 153 and 154 of the Constitution, rendering them legally non-binding. Moreover, the petition argued that the privatization process contravened Articles 2A, 3, 4, 5, 9, 23, and 38 of the Constitution, and the government’s adopted privatization procedure was deemed illegal. So, the petition was taken using the original jurisdiction, and the sale of the steel mills’ contract was declared null and void.
Further, the Lawyers’ Movement of 2007 exemplifies the strength of judicial activism and how it can mobilize systematic transformation. It was an intense struggle by legal practitioners and civilians to restore Chief Justice Iftikhar Chaudhry, whom then-President Pervez Musharraf had removed. In this way, the judicial system, through its proactive approach, not only reinstates CJ but also restores its independence and reinforces the system of checks and balances between the two branches of the state. Therefore, judicial activism prevents potential abuse of power by scrutinizing executive and legislative actions and ensuring that state authorities function within their constitutional limits.
Adding more to it, the Lal Masjid case of 2007 is another example of judicial action in addressing crucial national security matters. In this case, the judiciary used its original jurisdiction, took notice of security matters, and safeguarded civilian’s rights. Similarly, various illustrations are found in Pakistan, where judicial activism showcases its positive role in promoting good governance, transparency, accountability, and upholding the principles of equality and non-discrimination.
Next, judicial activism has played a significant role in the history of Pakistan and prevents abuse of power by legislative and executive bodies. On the other hand, the excessive use of judicial activism crosses the thin line, and consequently, judicial overreach occurs that neglects the basic democratic concept of separation of powers. To begin with, the “Separation of Powers” doctrine is based upon the balance of trichotomy of state branches. It prevents extra-constitutional use of authority endowed upon the executive, legislature, and judiciary. In exercising excessive judicial activism, the constitution of Pakistan allows the judiciary to play an active role in protecting the people’s fundamental rights. Still, it does not allow its intensive use in matters that fall under the domains of other branches of the state. The following illustrations paint a clear picture of judicial overreach.
First, the role of the Judiciary in a constitutional democratic state, Pakistan, has been dynamic and multilayered since its inception, as it often operated either under military rule or civilian administration that vigorously disrupted the state’s governmental structure. The judiciary has been accused of validating martial laws under the “Doctrine of Necessity” because it has not only paid no heed to martial law but also facilitated it by providing legal protection to military autocrats. Hence, Maulvi Tamizuddin Case 1953 and Dosso Case 1958 present a clear picture.
Likewise, during the tenure of Chief Justice Iftikhar Chaudhry, his frequent suo moto actions raised concerns about judicial intervention beyond its judicial mandate. The expansive use of this power highlighted the judicial overreach in Pakistan. Likewise, the tenure of Chief Justice Saqib Nisar was no exception. He took several suo moto actions and used extra-constitutional powers as his routine work under the umbrella of an independent judiciary. His routine involved intervening in everything from health and education to drinking water and mobile services. He used to summon government officials and humiliate them in the courtroom. Similarly, a controversial political decision in 2012 led to the disqualification of the then Prime Minister Syed Yousaf Raza Gillani, which was based on his refusal to write a letter to the Swiss authorities asking them to look into the money-lamenting case of former President Asif Ali Zardari. However, this way of practicing judicial power is objectionable because it is equal to encroaching on the powers of other branches of the state. For instance, the judiciary’s interventions in issues like setting petroleum prices, determining tax policies, and overseeing privatization decisions have sparked debates about whether such matters fall within the judiciary’s domain.
Therefore, some measures are necessary to overcome the potential abuse of judicial powers:
- Most importantly, the judiciary should practice a balancing approach by actively protecting the constitutional value and avoiding undue interference in the functioning of the other two branches of the state.
- Besides, there should be proper guidelines about how and when to invoke the original jurisdiction should invoke. The provocation of the suo moto power should involve the consultation of all the Supreme Court judges.
- Adding more to it, judicial accountability is also necessary in this regard, i.e., regular reports should be published that narrate the detailed rationale behind the judiciary’s use of suo moto power. So, the process of judicial appointments should be transparent and based on competency and integrity rather than political influence, and the judiciary should contribute more within the department by taking judicial reforms and promoting speedy trials of the cases pending before the court.
- Lastly, there should be a proper system of separation of powers in Pakistan so that each organ of the state can function independently for progress towards a democratic state.
In short, judicial activism and judicial overreach are two facets of the judiciary’s contribution to interpreting and forming the laws. Although there is a thin line between them, their distinction lies in how much the judiciary exercises its authority. The judiciary’s proactive role is considered a dynamic force in evolving and reforming the legal system and protecting the constitutional values and individual rights of people in Pakistan. Criticism starts when it crosses the constitutional values and signifies exceeding activism into the domains of legislative and executive branches and blurs the true spirit of separation of powers. There is an immense need for the judiciary to exercise judicial restraint and balance matters by remaining within its constitutional limits.
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