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INTRODUCTION
● Thesis Statement:
○ A democracy devoid of judicial activism can be anything but democracy. Judicial
activism, within rational limits, undoubtedly, acts as the security valve of democracy. Or
○ A democracy devoid of judicial oversight is nothing but an organized robbery.
Undoubtedly, judicial oversight is paramount for any democratic country.

● History is witness to the fact that it has been the inaction of those who could have acted;
the indifference of those who should have known better; the silence of the voice of
justice when it mattered most; that has made it possible for evil to triumph. It is justice
which extinguishes anarchy from society, protects sanity of few from tyranny of the
majority and secure the rights of citizens against state’s arbitrariness. Haile Selassie
●
● SAQIB NISAR: When critiquing the power the Indian supreme court now enjoyed over
parliament, Justice Nisar wrote: “This is of course a completely unprecedented display of
‘judicial’ power — power in its most naked form. Not merely unchecked, but uncheckable, since
there are no means of checking it known to the laws of any civilised system of jurisprudence. This
is a malady for which there is no remedy and an ailment for which there is no cure short of a
complete uprooting of the judicial and democratic system. A power so vast, so all embracing, can
hardly be conceived by any democratic system of governance resting on the basic principle of
checks and balances.”
● In present times, when states are faced by external aggression and internal disruption, harmony
and balance among the three organs of the state - legislature, executive and judiciary - has
become very important. However, when anyone organ shies away from fulfilling its
responsibilities, the intricate balance between organs of the state gets disturbed and different
organs intrude in each other’s domain to fill up the institutional vacuum. Unfortunately, this is what
has been happening in Pakistan.
● The maxims ‘justice delayed is justice denied’ and ‘justice hurried, justice buried’ most
aptly describe the essence of our judicial system, which desperately needs all-out
reforms, at all levels.
● Judicial activism is a double-edged sword and has to be exercised with caution.
Temptation to use power must not lead to actions that create political uncertainty and thus
have a negative impact on national economy and law and order. It must not lead to a
situation wherein crucial talks with foreign countries aimed at resolving vital issues are
stalled because of the uncertainty about the continuity of the country’s political
administration.
● Our justice system is poorly ranked. Pakistan ranks at 105 out of 113 countries in the
World Justice Rule of Law Index 2017-2018.

HISTORY
● Federation of Pakistan v. Maulvi Tamizuddin Khan (1955)
●

WHAT IS JUDICIAL ACTIVISM?

1. Constitutional standing of judicial activism / The Constitution allows judicial
activism / The Constitution of Pakistan has allowed judicial activism

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 a. Judicial activism is being exercised by the Supreme Court under Article 184, which is its
original jurisdiction. Para 3 of the article empowers the court to make an order if it
'considers' that a question of public importance with regard to enforcement of any of the
fundamental rights guaranteed by the constitution is involved.
b. Article 187 empowers the Supreme Court to issue all such directions, orders and
decrees, as it deems necessary, and secure the attendance of any person and
production of any document for doing complete justice in any matter before it. Under
Article 190, all executive and judicial authorities shall act in aid of the Supreme Court.
c. The extraordinary jurisdiction exercised by the apex court under Article 184(3) of
the Constitution to take a Suo Motu action is generally explained in terms of some
popular legal notions like ‘Judicial Activism’ or ‘Public Interest Litigation (PIL)’. However,
sensu stricto, this practice is hardly related to either of these notions. Judicial activism is
a legal term that refers to the judicial decisions that are partially or fully based on the
judges’ personal or political considerations, rather than existing laws. Black’s Law
Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby
judges allow their personal views about public policy, among other things, to guide their
decisions”. Judicial activism is also considered to be an aggressive approach to the
exercise of judicial review, in which judges are more inclined to invalidate legislative or
executive actions. So, just like the judicial review, the origin of judicial activism can also
be traced to the American constitutional jurisprudence.
d.
e. According to Strauss, judicial activism can be defined as one or more of three
possible actions including overturning laws as unconstitutional, overturning
judicial precedent and ruling against a preferred interpretation of the constitution.
f.

BOONS OF JUDICIARY / DEFENCE / BENEFITS OF JUDICIAL ACTIVISM IN PAKISTAN

IN PRAISE OF JUDICIAL ACTIVISM: WHY JUDICIAL ACTIVISM IS NECESSARY?

1. Judiciary has to fulfill its role as the guardian of the constitution / Not Parliament
but, constitution is Supreme, Sovereign / Interpreting the constitution: The
constitution is supreme. But the constitution is what the judges say it is.
a. “If a law written by the legislature conflicts with the Constitution, the law is "null and void." Only
laws which shall be made in pursuance of the constitution'' are to be the supreme laws of the
land.” Chief Justice of the United States of America John Marshall.
b. The Supreme Court in simpliciter has held that if a person cannot contest the elections on account
of his disqualification under Article 62 and Article 63 of the constitution of Pakistan, then he or
she also cannot become a political party head.
c. For instance, in the judgment of Baz Muhammad Kakar versus Federation of Pakistan reported as
PLD 2012 SC 923, the honourable supreme court in its judicial review powers under Article
184(3) of the constitution declared contempt of court ordinance 2012 ultra vires and
unconstitutional.
d. IN INDIA: TUSSLE BETWEEN THE INDIRA GANDHI GOVERNMENT… REDUCED
POWERS OF THE JUDICIARY THROUGH THE 42 AMENDMENT IMPOSED DURING
THE EMERGENCY
e. COMPARISON IN USA, GERMANY AND BRIATAIN
2. An Active judiciary is needed for Safeguarding Fundamental rights enshrined in
the constitution / Judiciary has to ensure that fundamental rights are not
disregarded and disparaged.
a. Right of fair trial under article 10A
b. Fee of private colleges
c. “We cannot leave the masses to the whims and caprice of the private
medical institutions”
d. No person shall be deprived of life or liberty, save in accordance with law (article
9)
e. Safeguard as to arrest and detention. All arrested person must be informed of
grounds of their arrest, they have right to consult and defended by lawyer of their
choice.
3. JUDICIAL REVIEW: A SAFEGUARD AGAINST TYRANNY OF MAJORITY
a. The tyranny of the majority (or tyranny of the masses) is an inherent weakness of
majority rule in which the majority of an electorate can and does place its own
interests above, and at the expense of, those in the minority. This results in
oppression of minority groups comparable to that of a tyrant or despot,
argued John Stuart Mill in his 1859 book On Liberty.

4. Judicial Activism derives its strength from the constitution and checks arbitrary
acts of the executive
a. Article 184
b. Missing persons
c. Price hikes (cell phone)
d. “An independent judiciary tames executive’s high headedness and
disregard of constitution” (Madison)
e. False cases, police brutality
f. The fundamental rights are provided in the Constitution and the duties have been
assigned to the superior judiciary under Article 199 of the Constitution, explained
Mian Nisar. According to Article 199(C) of the Constitution, it shall be the duty of
the high courts to enforce the fundamental rights, he added .

5. Fear of Judiciary, literally keeps the executive up at night: Judicial Activism forces
the executive into improving its performance and governance / Suo Mottos,
motivate the executive to improve its performance. / Suo Motto, Supreme Court’s
Weapon of Choice, has disciplined the unruly politicians and the high headed
bureaucracy.
a. Summoning government officers and ministers in courts
b. Visits
c. Financial corruption in Authorities and exorbitant salaries of the bureaucrats.
d. Suo Mottos , Supreme Court’s weapon of choice
e. Suo Moots against deteriorating conditions of hospitals, hydrants mafia in Karachi.
f. Jinnah Hospital
g. Fixing of fee of private medical colleges and institutions
 6. Recently, strong judgement passed by the judiciary has send shivers down the spine of
the corrupt elite; judiciary as a bulwark against corruption. / judiciary has become a
foremost defence against corruption. / With disqualification of unruly politicians,
judicial activism has reached its apogee / With disqualification of parliamentarians
and politicians on charges of omission, commission and emission, judicial
activism has reached its apogee
a. The Panama case
b. NAB
7. Reaffirms faith of People in Rule of Law / Judicial Activism restore faith of people
in the sanctity of law
a. Impeachment of Trump
b. SHO who fired at the lawyers
c. Shah rukh Jatoi
8. JUDICIAL REVIEW: A SAFEGUARD AGAINST TYRANNY OF MAJORITY
a. Petition for public hanging

b.
9. It supplies helpful insight.

WHY JUDICIAL ACTIVISM?

1. Failure of the Executive, Sends Open Invitation to Judicial Intervention
a. Sugar crisis
2. Reaffirms faith of People in Rule of Law
3. An Active judiciary is needed for Safeguarding Fundamental rights Against State’s
arbitrary Acts
a. Of course, the courts should not get into road-building and beautification of
government buildings, but they should actively intervene whenever rights are
violated and currently, the Executive’s inertia is so pervasive that rights are
routinely breached.
4. Judiciary has to fulfill its role as the guardian of the constitution / Not Parliament
but, constitution is Supreme, Sovereign / Interpreting the constitution
a. Similarly, the courts cannot assume the power of amending the constitution. That
power is exclusively vested in the legislature under Article 239 of the constitution.
b.
5. It supplies helpful insight
6. RULE OF LAW
 a. Delay in providence of justice and its implications on common men: rule of mobs

BANES
1. Judicial Activism Violates Trichotomy of Power
a. The principle of the trichotomy of powers provides that the legislature, the
executive and the judiciary have their powers and functions defined in the
constitution and it will amount to constitutional impropriety if any organ oversteps
its jurisdiction and interferes in the functions of the other.
b. Secured in the constitution of Pakistan
c. The growing judicial activism is clearly at the expanse of parliamentary
sovereignty and supremacy.
d. Justice Madison rightly pointed out, “Judiciary should never overstep its domain
and arrogate to itself legislative functions because, judges are selected not
elected. Judges are not representatives of people’s will”
e.
2. Judicial Activism Makes the writ of Executive Weaker / Creates untoward
hinderances in Executive’s work
a. SNG without head because cases of 8 former heads in NAB courts
b. At a time when democracy is struggling to take root and the government is
grappling with the grave menace of terrorism, the argument goes, judicial
activism will make the writ of the executive weaker.
c.
3. Judiciary needs to put his own house in order first: Pakistan Judicial System
Groans Under Corruption, Volume of Cases / Judges lose their focus from putting
their own house in order. / While the Judges Intrude into the Political and
Administrative domain, the judiciary cringes under the load of cases
a. More than 90pc of cases are not settled before trial and are litigated in court. A high
proportion of cases enter the appeal process, with liberal adjournments and non-
adherence to the civil procedure code causing delays.
b. For instance, the judicial system fails to discourage frivolous litigation/appeals and grants
open-ended stay orders.
c. Currently, there are 8 Supreme Court judges who decide the disputes for 180
million population and 48 judges of the Lahore High Court (LHC) are dispensing
justice to nearly 100 million population of the Punjab province.
d. There is genuine perception that courts are now meant just to hear high profile cases
like Memo Gate and Panama that attract media attention and make headlines while other
cases a
e. According to a vernacular newspaper 1.7 million cases are pending in superior and
lower judiciary
f. “A judiciary which … is tardy… and has no urge… and ability to decide the
cases/disputes before it expeditiously… is a danger to the state and the society”.
These powerful words, equating a delay-ridden judiciary with a national security
threat, were penned down by Justice Saqib Nisar in ‘MMFY Industries v Federation’
4. Judicial Delays Stall economic Development
a. Economic development, legislation, its predictable application (anchored in the
twin foundations of equity and certainty) and the effectiveness and efficiency of
the judicial system to enforce contractual obligations in a timely manner are
important..
b. Unfortunately, our courts, on an average, take three years to resolve a
commercial dispute compared with less than half this time in other jurisdictions.
c. PSM: 100 billion loss
d. Chinese Company Chen Deong
e.

5. JUDICIAL FORAYS INTO DOMAINS WHERE IT HAS NO KNOWLEDGE

a. A decision to invalidate the Affordable Care Act would clearly be an example of judicial
activism, because the court would be second-guessing the elected branches rather than
deferring to their judgment about the impact of millions of individual decisions about
health insurance on interstate commerce.
b. Reko Diq case i
c. The SPSC examination null and void
d. Slashing down of tax on mobile service operators in Punjab is costing Punjab
government millions of rupees per month
e. PSM: 100 billion loss
6. Who Will Judge the Judges? (politicization) / JUDGE’S PERSONAL VIEWS CAN
SUBSTITUTE PUBLIC VIEWS / BIASEDNESS CAN CREEP IN THE GUISE OF
JUDICIAL ACTIVISM L / POLITICISATION OF JUDICIARY
a. “The only check on our own exercise of power is our self-restraint,” chief
justice Harlan F. Stone once remarked
b. Mechanism of the Supreme Judicial Coucil
c. For example, a fundamental Christian judge might rule that protest restriction
laws against abortion clinics are constitutional, or a proponent judge could strike
down a ban on abortion when passed
d. The New Deal: 1200 acts
e. “Judiciary should be impartial in thought, deeds and actions otherwise, becomes
an abominable butchery of rights, justice and constitution.” (AR Cornelius, 4th CJ
of Pakistan)
f. New Deal and Justice Marshall (conservative)
g.
7. Colonial judiciary, vernacular justice
a. History of existing laws and judicial structures in Pakistan dates back to the British
colonial era — since independence nothing substantial has changed in the Anglo Saxon
system except a patchwork of so-called Islamic laws and establishment of Federal
Shariat Court by General Ziaul Haq. Two conflicting legal systems have given undue
advantage to the police alone for self-aggrandisement rather than serving any useful
purpose for dispensation of justice. The maxims ‘justice delayed is justice denied’ and
 ‘justice hurried, justice buried’ most aptly describe the essence of our judicial system,
which desperately needs all-out reforms, at all levels.

8. MILITARY COURTS INSTEAD OF REFORMS

a. 21ST amendment

WHAT HAPPENS IN the ABSENCE OF JUDICIARY : A PLIANT JUDICIARY

1. In absence of judicial oversight, dictatorial tendencies can find their way in
functioning of the executive / The Executive might act arbitrary / Pliant Judiciary
emboldens the Executive to act arbitrarily.

2. The Executive will be let free to interpret the constitution according to its own
liking.
a. Sindh governments attempt at amending the Police Act 1861, for reducing
powers of the IG
3. In absence of suo mottos, berating and accountability of administrative officers by
the judiciary, governance can deteriorate sharly. / Immediate relief
4. If judiciary becomes silent, the influential will rule the roost and ordinary people will lose
faith in sanctity of law.
5. If fear of judicial activism is removed, jittery hands of corruption will run the affairs of
state.

SOLUTIONS / TURNING AROUND THE MORIBUND JUDICIAL INSTITUTION

1. Rule of Law and Good Governance will reduce Judicial Activism
2. JUDICIARY SHOULD OWN ITS FAILURE: NEED OF INTROSPECTION
3. REFORMS
a. The total allocation to the administration of justice in the Eleventh Five Year Plan was
only Rs. 1,470 crore.
b. Develop discipline in the judicial system
c. STRENGTH OF JUDGES MUST BE IMPROVED
i. It recommended that this number be raised to 107 judges per million.
d. Computerized record and registry
e. Recruitment of lower judiciary through strict competitive exams by ppsc

4. DISCOURAGING FRIVOLOUS LITIGATION

a. Discourage frivolous litigation by imposing court costs and levying hefty charges on
those seeking frequent adjournments, while recognising that government systems and
the behaviour of its functionaries also need to change.
b. Review of contempt of court laws and the offence of scandalising/maligning a judge,
since the concept is archaic and stifles free speech and criticism of court processes. At a
personal level, judges have no right to a higher level of protection than any other citizen
through defamation laws.
5. ENSURING MERITOCRACY / TRANSPARENCY IN APPOINTMENT OF JUDGES
a. In the UK, candidates have to go through a written test, situational questions, role-playing
exercises, and interviews under the Constitutional Reform Act, 2005. Candidates are
accordingly shortlisted and then considered for judicial appointments. In Pakistan, a
 competitive judicial examinaSuperior Court judges are appointed under Article 175-A of
the constitution, which authorises the chief justice of a high court to nominate a lawyer for
judicial appointments by the Judicial Commission of Pakistan.
6. PERFORMANCE REVIEW INDICATORS (PRI)
a. Canadia example
7. Reinvigorating the Panchayat System for Petty Cases

RANDOM
● Dispensing Justice is not a Walk in the Park: All Countries Suffer from Backlog of Cases
○ In developed world, the story is no different, US President Trump has fought 3500 cases in the
courts, some still pending and his lawyer Alan Garten had said in 2015 that this was “a natural part
of doing business in the US “
● ONSET OF JUDICIAL ACTIVISM IN PAKISTAN
○ Pakistan when the incumbent Chief Justice Iftikhar Muhammad Chaudhry regained his power in
September 2009.
○ under Article 184(3).
●
●