Judicial Activism in Pakistan refers to the judiciary’s ability to interpret the constitution differently from previous legal rulings, thereby bringing about social change. This doctrine is essential for the judiciary’s role and not surrendering it implies yielding to the legislative and executive branches. Throughout history, there have been significant instances of judicial activism where the judiciary has challenged arbitrary actions by the legislature or abuses of power by the executive that disrupted lawful proceedings.
In order to understand the reasons and characteristics of judicial activism, it is important to first define it. In a modern democratic country, there are three branches of power: the judiciary, executive, and legislative. Each branch has its own specific roles. However, in more developed political systems, it is often noticed that both the legislative and executive branches do not adequately fulfill their duties. Instead of serving as a check on executive action, the legislative branch frequently becomes submissive to it.
The dysfunction caused by the lack of action in passing laws has led to the judiciary stepping in to fill the void, providing relief for those impacted by oppression and interpreting deficient or ambiguous laws. Chief Justice John Marshal of the United States is credited with pioneering judicial activism. The cases Marbury versus Madison and Mccullough against Maryland played a crucial role in establishing judicial review, which gives the judiciary authority to determine if laws passed by the legislature or actions taken by the executive branch are constitutional. Under British rule, personal laws based on religion were respected within the subcontinent’s judicial system. Muslims followed their own laws regarding inheritance, marriage, child custody, and land transactions; similarly, Hindus, Persians, and Christians were governed by their respective personal laws.
The British bestowed upon us a comprehensive framework of courts, procedural laws, and certain substantive laws that were presented in a codified manner. They compiled the laws enacted by the British Parliament for their own purposes and adhered strictly to conventions and previous judgements. Although inclined towards conservatism, the British sought recourse to equity in cases where their laws did not offer a remedy for specific situations. Equity involves employing principles of good conscience, natural justice, and fair play. Consequently, it emerged as a distinct area of law with dedicated equity courts.
In fact, equity forms the basis of judicial activism, ensuring that courts do not feel powerless when the law does not provide a solution or remedy for a particular situation. This allows them to find a way to provide relief to the aggrieved party. When the British left in 1947, India and Pakistan were permitted to adopt the British legal order outlined in the Government of India Act 1935, in conjunction with the Independence Act 1947, until they established their own constitutions. Pakistan drafted its first constitution in 1956 and was governed by the old British legal order until then.
Pakistan’s judicial history is filled with cases where the judiciary succumbed to executive pressure, such as the overturning of Maulvi Tamizuddin’s Appeal in 1955, the Asma Jilani’s case in 1972, the Nusrat Bhutto’s case in 1977, and the Zafar Ali’s case in 2002 during Mushraf era. The Malvi Tamizuddin case in 1955, heard by the Chief Court of Sind, was the first instance of judicial activism. This case set a precedent by ruling that the governor general had no authority to dismiss the constitutional assembly.
However, the decision of the chief court was set aside by the federal court, which upheld the order of the governor general. According to reports, the constitution draft was ready for announcement on December 24, 1954. However, the governor general dismissed the assembly on October 24, 1954, in order to prevent the government of the elected Prime Minister from being dismissed. The federal court determined that a writ jurisdiction could not be used since the relevant law had not received the assent of the governor general. As a result, the judgment of the federal court, constitution acts, and numerous decisions became invalid due to a lack of assent from the governor general.
There was a lot of confusion and cheating, leading the governor general to issue an ordinance with retrospective effect to correct the mistake. The next important case is the Asma Jilani case (1972), which challenged the second Marshal Law of General Yahya Khan in 1969. The military government pleaded the law of necessity, but the supreme court rejected this plea. They held that the commander of the armed forces was obligated by oath to defend the constitution and did not have the power to dismiss it, as the constitution was the fundamental law of the country. General Yahya Khan was also declared powerless during this Marshal Law period, which resulted in East Pakistan becoming Bangladesh. The judgment in the Asma Jilani case was very bold and displayed clear judicial activism, as the doctrine of necessity was rejected and the door to martial law was closed. On July 5, 1977, General Ziaul Haq suspended the constitution and imposed martial law, which was challenged in the Supreme Court by Begum Nusrat Bhutto in 1977. The supreme court did not follow the rule established in the Asma Jilani case and held that the Begum Nusrat Bhutto case had distinguishable facts. They noted that the constitution had not been dismissed, but only suspended with the intention to resort back to it.
The suspension of the constitution and the imposition of martial law were justified based on the state’s necessity and treated as a departure from the constitution. In the Saifullah case in 1988, despite strong pressure from the executive, it was made mandatory that elections would be held on a party basis. Later, both the LHC and the SC declared that the Junejo government was dissolved unconstitutionally. By interpreting Article 17 of the constitution very actively, the Nwaz Sharif government was restored in 1993. If the SC had interpreted the article textually, the case would have been heard by a High Court as the first instance.
In 1996, two significant cases brought about a significant change in Pakistan’s political landscape. The Supreme Court played a crucial role in separating the judiciary from the executive at the lower level through the legal Reforms Ordinance, 1996. Additionally, in the groundbreaking “Judges Case” of March 29, 1996, the SC established that the chief justice of Pakistan would have the primary authority in appointing judges to the superior judiciary. The executive’s consultation with the chief justice regarding judge appointments would need to be purposeful, meaningful, and consensus-driven.
This case signifies the end of a long-standing practice in which judges were appointed to the higher judiciary by the executive without the consent of the chief justice of Pakistan. This practice had been previously observed during General Pervaiz Musharraf’s tenure, who, on October 12, 1999, suspended the constitution and implemented Martial Law. The Supreme Court had also challenged this action. Throughout history, the military has carried out several coups where they have taken control of the government and either abolished or suspended the constitution (in 1958, 1977, and 1999), resulting in a significant increase in judicial activism. In recent years, there has been an increasing assertiveness from the Supreme Court in fulfilling its role.
The Court’s pro-active stance caused significant disruption to intelligence agencies and led to a commendable effort in addressing missing persons cases. In 2006, Chief Justice Iftikhar Chaudhry took important measures that can be regarded as a year of “judicial activism”. During this time, a range of high-profile cases with political, social, economic, and constitutional ramifications were resolved. Additionally, the Court addressed numerous human rights cases based on simple complaints from news sources in the print or electronic media via sue-moto notice/action. Notably, the Chief Justice played a pivotal role in preventing the illegal sale of Pakistan steel mill.
The Supreme Court took various actions to address different issues. They cancelled the conversion of public parks into commercial ventures and imposed a ban on kite flying. They also ordered the authorities to search for and recover missing persons. The court put a stop to marriages that were not based on free will, and took action against detention, torture, and murder. The Inspector-Generals of police of the four provinces were directed to protect women from being given in marriages as a result of ransom, following the un-Islamic customs of Vani and Sawara. Additionally, the court intervened to stop illegal hikes in petroleum prices and overcharging on petroleum production by the government.