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An in-depth analysis of judicial activism in pakistan, a judicial philosophy where courts expand individual rights through decisions that depart from established precedent. The history of judicial activism in pakistan, its impact on the political landscape, and notable cases. It also discusses the implications of judicial activism for democracy and the rule of law.
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ASSIGNMENT # 01 TITLE: JUDICIAL ACTIVISM
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. According to Merriam-Webster's Dictionary of Law, Judicial Activism defines as "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or. In opposition to supposed constitutional or legislative intent".
Judicial activism should not be considered a new scenario as its history extends through the many decades. In most of the jurisdictions, different things have played important roles in contributing to the uprising of it that includes state organs; executives and legislators. It finds and reinforces its history in several events like that of violation of the law and constitution, malfunctions, corruption as well as nepotism and non-compliance. The period in judicial history of Pakistan has also been stained by a great controversy since court has faced accusations of having participated in "judicial activism", has acted on political basis and abused the powers established by the constitutional mandate between the institutions of the state. This chapter demonstrates detailed analysis of the actions related to judicial review of the Court of Chaudhry, mentions the accusation of judicial activism is mainly unusual and critically blurred.3The judicial activism‘s concept is based distinctions between law as well as politics and politics and unable to provide a structure to properly analyze or evaluate the type of politics that Pakistan has recently going through. The role of the Supreme Court, like
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.
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 was 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. REFERENCE: http://www.cssforum.com.pk/css-compulsory-subjects/essay/ essays/74587-judicial-activism-pakistan.html https://www.aabri.com/manuscripts/141803.pdf
