Judicial Activism Shaping the Future of Pakistan Syeda Saima Shabbir* Introduction Judicial activism is a neologism for a broader term i.e. judicial review which in simple terminology is a power vested with the superior courts to adjudicate on the constitutionality of a law, statute, administrative action, constitutional provision or an amendment. The power of judicial review is exercised worldwide by the superior courts as it is a strong legal tool in the hands of the judiciary to make ineffective all extra-constitutional acts and policies of the administrative, executive and legislative authorities. Likewise, the Supreme Court of Pakistan is also exercising this power though more frequently now-a-days to check the arbitrariness of various State actions. This exercise of judicial review has increased substantially after the restoration of de jure judiciary in 2009.1 In the present state of affairs in Pakistan the judges of the Supreme Court are often criticized for being over active. Critics say that the Supreme Court is intermeddling in the affairs of the State by travelling beyond its jurisdictional domain thus damaging democratic values. This research paper focuses mainly on the question as to whether judicial activism on the part of the apex court i.e. the Supreme Court of Pakistan is obstructing democratic development or rather improving the role of the executive and legislative authorities while setting a roadmap for future democratic stability and good governance in Pakistan. No doubt Supreme Court’s decisions are highly complicated and assessing their intricacies is difficult, if not impossible for anyone other than a specialist in the area of law. Therefore, I have tried to be more simple and straightforward by relying on the common sense understanding of Constitution and offering a perspective from which a rational person can judge the nature of Court’s duty and its activism. In Part-I of this paper I have discussed the background of judicial review encompassing the pioneer case laws from American and British jurisdictions; and how that concept travelled to India and Pakistan being the excolonies of Britain. 2I have specially focussed on the role of the Federal Court later replaced by the Supreme Court of Pakistan in the initial years of Pakistan’s inception when it acted as a docile and subservient institution of the executive and military. In Part-II, I have discussed a new dimension assumed by the judicial review in the shape of judicial activism after the restoration of de jure judiciary in Pakistan in November 2009 and the impact of this activism on democratic * Syeda Saima Shabbir is a PhD Fellow at International Islamic University Islamabad and also working as Research and Reference Officer in the Supreme Court of Pakistan. 1 The incumbent Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry was made dysfunctional along with many other superior courts judges by the then Chief Executive General Pervez rd Musharaf on November 3 2007 through imposition of emergency. The Chief Justice got restored to his position in 2009 after the return of democratic rule in Pakistan. 2 The Islamic Republic of Pakistan got independence from the British rule in 1947; prior to that the areas now comprising Pakistan and India were British colonies. After independence Pakistan and India adopted the Government of India Act 1935 as the basic constitutional structure which was later replaced by the respective Constitutions of both the countries.
Electronic copy available at: http://ssrn.com/abstract=2209067
governance of Pakistan. I conclude with divulgence on the executive and legislative authorities’ weaknesses and lack of will to ensure rule of law and democratic governance in Pakistan.
Judicial review in the United Kingdom takes its roots from the case of Thomas Bonham (1605) 3 wherein Sir Edward Coke the Chief Justice of the Court of Common Pleas declared a statute of Parliament to be null and...