Judicial Activism in Pakistan
Social change effected by judicial decree. The doctrine that the judicial branch especially the federal courts, may interpret the constitution by deviating from legal precedent as a means of effecting legal and social change.
Judicial activism is a time honored trait of judicial function and to give up that trait is to surrender before these two mightier organs of the state. History bounds in scintillating examples of judicial activism, when the judiciary came face to face with legislative arbitrariness or executive abuses or interference in the due course of legal proceedings.
Before we dwell on the cause and features of judicial activism, let us first understand what it is. A modern democratic state is built on the principle of trichotomy of powers, i.e. the judiciary, executive and legislative have to perform their won designed functions. However, it has been observed that even in developed politics, the functioning of the legislative and executive leave a lot to be desired. Instead of being vigilant and acting is check on executive prosecution, legislative becomes its hand maiden. In addition, it is negligent in enacting laws. To fill the vacuum resulting from this legislative, executive malfunctioning, judiciary has to assert itself by providing relief to the sufferers of tyranny and by interpreting laws, which are either deficient or vague.
Historically, the architect of judicial activism was Chief Justice John Marshal of the United States. In two landmark cases, Marbury versus Madison and Mccullough against Maryland, laid the function of the doctrine of judicial review i.e. the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not.
Judicial system in the subcontinent was provided by the British government that did not interfere with the personal laws of its subjects. Muslims were governed by their laws of inheritance, matrimonial affairs custody of children prevention to purchase and sale of land etc, as rooted in their religion like wise, Hindus, Persian and Christian were governed by their personal laws.
British gave us a system of courts, procedural laws and some substantive laws in codified form. For their own use, they have codified laws made by parliament in Britain and rigidly followed conventions and precedent judgment. The British are conservative by nature but whenever their laws are silent and provide no remedy in a particular set of circumstances, they appeal to equity, which means the use of good conscience and principles of natural justice and fair play. This has become prominent as a different branch of law and they have separate courts of equity. In fact, equity lays down the foundation of judicial activism so that courts do not feel helpless if the law does not allow solution and remedy for any particular reason and can find way in order give remedy to the aggrieved party.
When British left in 1947, the emerging countries of India and Pakistan were allowed to follow the British legal order in the shape of the government of India Act 1935 to be read with the independence Act 1947 until both countries drafted their own constitution. Pakistan made its first constitution in 1956. Until it was governed by the old British legal order
Pakistan’s judicial history is full with cases like overturning of Maulvi Tamizuddin’s Appeal in 1955, and second case is the Asma Jilani’s case in 1972, and the third Nusrat Bhutto’s case in 1977, the forth Zafar Ali’s case in 2002 during Mushraf era where the judiciary bowed to the executive pressure. The first case in court that demonstrated judicial activism was that of Malvi Tamizuddin case in 1955 but Chief Court of Sind. It was the landmark judgment to the effect that the governor general had no power to dismiss the constitution assembly. But the federal court set a side the decision of the chief court and...
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