The pitfalls of Judicial Activism and what to do about It

Abdur Rahim |

American historian and public intellectual Arthur Schlesinger Junior introduced the controversial term “Judicial activism” in Fortune Magazine in an article titled “ The Supreme Court: 1947”. He profiled all nine judges of the then American Supreme Court; Justices Rutlege, Douglas, Murphy and Black were characterized as “Judicial activists” and Chief Justice Vinson, Jackson, Burton, Reed and Frankfurter were called the “Champions of self-restraint”. Schlesinger concluded that judicial activists forcibly implement their decisions on other branches of the government that move the state to judicial despotism. And this is a road that leads to sabotage of the political and democratic process.

What is Judicial Activism?

Judicial activism is a controversial legal term that carries pejorative connotations. Since 1947, law makers, judges, politicians and experts have been interpreting this term in various ways. The term refers to undermining of the constitutional limits of courts by judges. A judge may behave more as an executive authority than a judicial one. Judicial activism challenges the balance of power among state’s institutions.

There are two schools of thought regarding judicial activism; some argue that Suo motu actions by courts are in the public interest whereas others posit the view that such actions encroach upon the authority of the executive as well as the legislative, that judicial activism is unfavorable to the democratic process. Judicial activism can arguably be identified in the following five ways:

1. Invalidating the constitutional actions of other branches of the state
2. Failure to adhere to precedents/cases in point
3. Self-designed judicial “legislation,” without considering parliament’s legislation
4. Deviation from accepted interpretive methodology
5. Focus on result-oriented judging

Read more: Are Nawaz’s anti-judiciary antics justifiable?

Judicial Activism in Pakistan

Pakistan’s judicial system can also be analyzed using Schlesinger’s ‘five-point characteristics’. Decisions that result in erosion of the power of elected representatives of the public and disruption of the smooth flow of political and democratic processes have remained core themes of judicial activism in Pakistan. In the infamous Tameez-ud-Din case of 1954, the then Chief Justice Munir Ahmed’s controversial decision backed by the Governor General Ghulam Muhammad against Pakistan’s constitutional assembly was the first step towards judicial activism in Pakistan that put a question mark on the future of parliamentary supremacy.

Any threat to the parliament is a threat to democracy in Pakistan. And in this regard, judicial activism is sabotaging democratic traditions that help strengthen the federation. Undermining the capacity of parliamentarians to make any law within constitutional limits is unacceptable.

In 1977, Zulfiqar Ali Bhutto was accused of widespread rigging in elections, the Lahore High Court helped General Zia ul Haq hang him after he was charged with the murder of Ahmed Raza Kasuri. This added another dark chapter to the history of judicial activism in Pakistan. On 28th of July, 2017, the elected PM Nawaz Sharif was disqualified on ‘not receiving the receivable salary’ from Dubai-based Capital FZE Company.

After necessary legislations, the parliament passed Election reforms bill 2017, and Nawaz Sharif was made eligible to become president of Pakistan Muslim League- Nawaz (PML-N), but the Chief Justice of Pakistan Saqib Nisar declared sections of Election Reforms Bill 2017 null and void and Nawaz Sharif was disqualified as the head his political party. Interestingly, on November 7^th, 2007, the incumbent CJP Saqib Nisar violated the constitution by taking oath under a PCO during General Musharraf’s regime. He was removed by Lahore High Court, and later on, Justice Dogar re-appointed him along with Justices Azmat Saeed, Asif Khosa and Ata Bandial on August 31st, 2008.

Read more: PM Abbasi attacks judiciary and seeks parliament supremacy

Beyond the Curtain

For the last six decades, judiciary has remained controversial in Pakistan; either by supporting the establishment’s interest to undermine politicians or by helping impose martial law in the country. The actions and decisions of the Supreme Court have the potential to disturb the balance of power among the organs of the state.

The civil-military tussle has made the judiciary even more controversial. Furthermore, amid rising tension between the military and civilian leadership over foreign policy, ties with Iran and Saudi Arabia, the issue of sending troops to KSA and upcoming senate election of 2018, the judiciary seems to be playing the establishment’s game.

Pakistan’s judicial system can also be analyzed using Schlesinger’s ‘five-point characteristics’. Decisions that result in erosion of the power of elected representatives of the public and disruption of the smooth flow of political and democratic processes have remained core themes of judicial activism in Pakistan.

In case PML-N wins the majority in senate elections, it will be seen as a failure by the establishment to keep certain politicians under its thumb. The dramatic shift in Balochistan government’s setup where PML-N’s majority was converted into a minority is the epitome of the ongoing scrimmage between PML-N and establishment.

Read more: Does the constitution allow the judiciary to review amendments?

What should be done?

Since Pakistan’s inception, the army along with intelligence agencies has remained largely popular among the public. Furthermore, Suo Motu actions taken by the Supreme Court on issues faced by the public such as lack of clean drinking water, exorbitant fees by private schools and human rights violations in general convey the impression that the judiciary is highly active in tending to the concerns of the people.

Unfortunately, parliament has come to be seen as either ineffectual or indifferent to the woes of the people. In the current scenario, all the three branches of the state are in a tug-of-war with each other. Historically, the judiciary backed by the military or vice versa has encroached upon the authority of elected representatives of the people, undermining parliamentary sovereignty and violating the constitution. Some senior military leaders have openly called the constitution “mere pieces of paper”.

Pakistan is a federation where constitution is the supreme document of the state and parliament is a sovereign institution. The stability of a strong and integrated Pakistan lays in a ‘sovereign parliament’ only. Any threat to the parliament is a threat to democracy in Pakistan. And in this regard, judicial activism is sabotaging democratic traditions that help strengthen the federation. Undermining the capacity of parliamentarians to make any law within constitutional limits is unacceptable.

Abdul Rahim has completed his M. Phil degree with a focus on foreign policies, regional security, and strategic affairs at International Islamic University, Islamabad. The views expressed in this article are authors own and do not necessarily reflect the editorial policy of Global Village Space.