Introduction :
In every democratic country, legislature, executive and judiciary are seen as the three most important units which play a vital role in the administration of the country. Same can observed in the democratic set- up of Pakistan in which all the functions of the State are divided into three parts: making of laws, execution of laws and to do justice. These three functions are performed by three organs which are called Legislature, Executive and Judiciary. Legislative,executive and judicial powers are distributed among different organs of government and each organ exercises them separately and independently.
Though there should be close harmony between the various departments but none should have total autonomy. Other department should check each department's authority so that none can find opportunity to misuse its powers. Among all these organs, judiciary is the component responsible for the resolution of disputes regarding law and order of the country. Every country irrespective of the form of government prevalent there has its own judiciary. Hence, it is the branch which is supposed to be totally impartial and apolitical. However, sometimes, the laws of a country are written in such a way that they may be open to interpretation in different ways. In cases when a law is interpreted in a wrong way, the role of judges and courts as the custodians of justice becomes important. This aspect, in recent times, has given rise to the dual concepts of judicial activism and judicial restraint.
HISTORICAL FRUITION (fulfilment ,realization ) OF JUDICIAL ACTIVISM :
Judicial activism is not a new phenomenon; it has grown over time with the failure of the executive to fully cope with the aspirations of the people becoming increasingly conscious of their rights in a fast changing world. The earliest seeds of its growth can be found about two hundred years ago, when Justice Marshall of the United States decided the celebrated case of Marbury vs. Madison. Marbury was appointed by an outgoing American president as Judge but his warrant of appointment wasn't delivered. When Marbury asked the Supreme Court to force the Secretary of State Madison to issue them, Chief Justice Marshall dismissed it saying that, the Judiciary Act of 1979 on which Marbury was basing his claims, was unconstitutional. He said that the claim violated the American Constitution which formed the basis for the laws. This was the birth of judicial activism and judicial review.
In Pakistan, judicial activism became prominent because of Public Interest Litigation (legal proceedings). It has also been helped by the Constitution Act, 1973 which gave more importance to directive principles. This has increased people's expectation from courts of ensuring a better administration by giving appropriate directions.
JUDICIAL ACTIVISM IN PAKISTAN :
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 and judiciary began to be active in Pakistan, when Gen Zia lifted the martial law, restored the 1973 constitution by making the Objectives Resolution (Article 2-A) as substantive part of the constitution.
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 Lahore High Court and the Supreme Court 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 Supreme Court 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 has been tacitly supported by ever government in order to enjoy political clout.
Then, in the path breaking "Judges Case" of March 29, 1996, the Supreme Court declared that the chief justiçe 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.
The introduction of the abovesaid and future reforms, later indirectly closed the doors of the traditional legal system. Even the courts could take suo moto
notice or any person could file a petition to draw the attention of the court about infringement of any of the fundamental rights. Public interest litigation (PIL) became common, and relief to the public was given by freely invoking the fundamental rights enshrined in the constitution. Thus, it became common that the proceedings initiated through suo moto powers for the violations of fundamental rights used to be converted into a petition under Article 184-(3). Thus, the period from 1990 to 1996 was the golden period of development of PIL. But this suo moto jurisdiction of the courts was regarded by some legal circles as too arbitrary since it freed the courts from all procedures and precedents.
Similarly the suo moto cases regarding the random crimes of heinous nature, deaths by kite-strings, cases of bonded labour, inhuman treatment in jails, NICL scam, Hajj corruption, Ephedrine scam, cases of missing persons, and rulings on scores of other public issues were widely welcomed by the public already wary of bad governance of the present rulers. One major benefit of judicial activism was that it gave relief to millions of poor and helpless people who were unable to knock the doors of the courts for relief.
LEGAL STATUS OF JUDICIAL ACTIVISM IN PAKISTAN :
The first argument against uncomfortable kind of judicial activism was brought forward in the name of 'principle of trichotomy' of powers and sovereignty of parliament as contained in the constitution of Pakistan under which the apex court had to respect the Parliament and the executive. The fact remains that the Parliament can dilute the powers and functions of the judiciary by amending the constitution but such amendments themselves are open to judicial review. They forget that to fill the vacuum resulting from any 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.
Normally, judicial activism is being exercised by the Supreme Court under Article 184, which is its original jurisdiction and the actions are initiated as suo moto. It empowers the court to fundamental rights are violated. It is for the apex court to decide whether the matter is important make an order if it 'considers that a question of public importance is involved or the enough or not. The real power of a activism comes with Articles 187 and 190 by virtue of which the Supreme Court issues all such directions, orders and decrees and can secure the attendance of any person, call for any document, any executive or judicial authority to reach a just decision.
FACTORS THAT TRIGGERED JUDICIAL ACTIVISM IN PAKISTAN :
Judicial activism is gaining prominence in the present days. In the form of public interest litigation (PIL), citizens are getting access to justice. Judiciary has become the centre of controversy, in the recent past, on account of the sudden judicial intervention. The area of judicial expanding intervention has judiciary has been steadily expanding through the device of public interest litigation. The judiciary has shed its pro-status quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society, by progressive interpretation and positive action. It has carried forward participative justice. It has laid just standards of procedure, It has made justice more accessible to citizens."
1. Malpractices of Executive and Legislature: Judicial activism has arisen mainly due to the failures of the executive to act, i.e. sugar crisis, poverty and price hikes, Punjab Bank Scam, NICL scam, Hajj corruption, Ephedrine scam, cases of missing persons, and rulings on scores of other public issues are all outcome of the malpractices of our executive and legislatures.
2. Failure of Legislature and Executive to Deliver the Goods:
Secondly, it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods. NRO, 17th Amendment in the constitution of Pakistan, ambiguities in supplementary laws, cases of bonded labour, inhuman treatment in jails and all the other recent scams and crisis are attributed to the legislature and executive utterly.
3. Ineffective and Inactive System: Thirdly, it occurs because the entire system has been plagued by ineffectiveness and inactiveness owing to corruption, redtapism, foreign interference and influence in our domestic affairs and national politics.
4. Violation of Fundamental Rights of People: Fourthly, the violation of basic human rights has also led to judicial activism. For example, in target killing, suicide bombing kite-strings, cases of bonded labour, inhuman treatment in jails
5. Loopholes in Existing Laws and Punishments: Last but not least, the loopholes in existing laws and punishments have also aggravated the situation. Miserably, the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained significance.
6.Other Factors: Besides the abovementioned factors, there are some other situations that lead to judicial activism. These are:
JUDICIAL ACTIVISM-A BLESSING OR A CURSE :
Against Judicial Activism: Due to judicial activism which is having a deteriorating impact on the democratic order, people are losing their faith in the governmental mechanism and in political leadership. Due to this they are viewing even the prime minister suspiciously.
As from the theories we know that they signal the faults in our judicial system. So judicial activism comes into the picture to be in the limelight. But flaws in the executive and the legislature are not alone. There are flaws in the judiciary system also.
The critics of judicial activism call it as an abuse to PIL. The apex court influenced powers of chief executive of the State in several cases, taking sue moto actions in NICL scam, Hajj corruption, ephedrine and many other cases. The natíonal and international media discussed all aspects of the court's recent actions in detail. Several media reports alleged that Supreme Court was waging a campaign of judicial activism, pitting it (SC) against an elected civil government.
In Favour of Judicial Activism: The problem comes that if the courts remain silent on the questionable or unjust acts of the government and do not exercise their constitutional jurisdiction, they are accused of being docile and subservient to the rulers. And if they do, they are charged with having a political agenda and are labeled with judicial activism. It is argued that this judicial activism would undermine the authority of parliament and the executive and thus weaken democracy. Speaking truly, such judicial activism is the effect rather than cause of ineffective role of both parliament and the executive.
As per daily Dawn's opinion appeared on December 24, 2009: 'Given the broken system of governance in many areas, judicial intervention is probably necessary in many instances. But there is a thin line between wanted judicial intervention and unwanted judicial activism that encroaches on domains of the other institutions of the state. Clearly, the constitution has made the judiciary the guarantor of the fundamental rights of the people and given the superior judiciary wide-ranging suo motu powers. However, the judges must pay heed to the fact that along with duties to the people, they also have a responsibility to fashion a stronger democratic and constitutional system."
In our contemporary history our parliament remained silent over subversion of the constitution and dismissal of the judges by Gen Musharraf on November 3, 2007. The Supreme Court had to invalidate and reverse those acts. Similarly, when the NRO came up for hearing in the Supreme Court, the court could either validate or invalidate it. Validation of the NRO was not possible because the sitting PPP government could not get it through its own elected Parliament.
But then judicial activism will be little more than a coup by another name. The establishment's support does not come for free. Nor does it come for the love of democracy. It is a loaded deal that requires the other partner to dance to its tunes. Surely no self-respecting judge or judiciary can be happy with an arrangement like this, which will be most immoral and viciously anti-democratic.
All of this makes the current state of judicial activism a complex and problematic exercise. Good intensions aside, it is a path that winds up to more confrontation and more friction. The publicity surrounding the present phase of activism might hide its pitfalls for now, but it is only a matter of time before these are fully revealed to the horror of the nation. Judges are best suited dispensing justice. When they step beyond this secure realm, they either need crutches to stand on or risk their reputation being put through the shredder. And we know that a judge with crutch or a tainted reputation is no better than a politician without a vote-bank. Both are useless. Both are poor role models. The risks of judicial activism are more than its gains. It must be revisited.
Conclusion :
Judicial activism if used by judges who are loyal with their work can act as one of the most powerful tools for Pakistan's judiciary system. Lot of high profile cases like conviction of Yousuf Gillani and cognizance of different cases, i.e. missing persons, NRO, Hajj Corruption, etc. is taken because of judicial activism. But if the judges are not loyal and are corrupt then it can also results in ruling which surpasses all logics because as Justice J.S. Sharma of India has referred: "Judicial activism is a sharp-edged tool which has to be used as a scalpel by a skillful surgeon to cure the malady. Not as a Rampuri knife which can kill."
