Judicial Activism

Be yourself; Everyone else is already taken.

— Oscar Wilde.

JUDICIAL ACTIVISM- A PILL NECESSARY FOR THE DEMOCRACY IN PAKISTAN

INTRODUCTION
Judicial activism is the exercise of the power of judicial review to set aside government acts. Generally, the phrase is used to identify undesirable exercises of that power, but there is little agreement on which instances are undesirable. Judicial activism means when the court or a judge takes notice of some issue on his own and decides the matter as per their own interpretation instead of codified law or a statute. [1]
Judicial activism is legally defined as ” judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies”. [2]

BACKGROUND
The term Judicial activism was introduced in 1947 by Arthur Schlesinger Jr. In an article of Fortune Magazine “The Supreme Court: 1947” in which he profiled the nine Justices as either “judicial activists” or “champions of self restraint. [3]
If we consider the broader sense of Judicial activism, it related to the power of Superior courts to conduct a judicial review upon a particular statute/Administrative decision/the constitutional status of a law/Amendment. It is a power globally exercised by Superior judiciary being a vital tool to grant a legal status or nullify any action of the organs of state.
In Pakistan, the actions of judicial activism by superior courts is validated & well established by Art 184(3) The Constitution of Islamic republic of Pakistan, which empowers the court with a limitless jurisdiction to handle matters of public importance & issue any suitable orders upon such matters using their Suo motu power.
Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.
Myth, Power, and Deception in American History (7th edn, Nashville Tennessee Thomas Nelson Inc 1999)
Traditionally, High Court isn’t vested with powers to take suo-moto constitutionally but in the past few years based on principles of natural justice, judicial revolution it has seen a vital role for itself in involvement of state affairs. Lahore High court Chief Justice Mr. Justice Sharif reportedly remarked that suo motu powers of the judiciary [i.e. of the High Courts] was an effective way to check violations of law by the executive and to protect the rights and the lives of the poor in the country and that “I will take notice of every matter in which the executive is showing slackness, as justice should be dispensed at all costs.

LANDMARK CASES [4]
Some of the landmark cases where Judicial activism derives its actuality from includes Chief Justice of the US Supreme Court John Marshal in the early 19th century. In the landmark case of Marbury vs. Madison, it was declared that “an act [of another branch of government] repugnant to the Constitution is void”.
a. MAULVI TAMIZUDDIN KHAN CASE (1955) [5] Federation of Pakistan v. Maulvi Tamizuddin Khan (1955); is a court case of the Dominion of Pakistan. The Federal Court of Pakistan (now the Supreme Court of Pakistan) ruled in favour of the Governor General of Pakistan’s dismissal of the 1st Constituent Assembly of Pakistan. The dismissal was legally challenged by Maulvi Tamizuddin Khan, the president of the assembly. Except for one dissenting opinion, the majority of the court supported the dismissal on grounds of the doctrine of necessity. The verdict was considered a blow to democratic norms, which had ramifications in modern-day Pakistan.

b. USIF PATEL CASE [6] The Federal Court (Supreme Court) declared in the leading Constitutional Case ‘Usif Patel & 2 others vs The Crown’, PLD 1955 Federal Court 387 (Appellate Jurisdiction), that the governor general had no power to make provisions to the Constitution of Pakistan. After this decision of the Federal Court the country faced Constitutional crisis which was greater than when the governor general had dissolved the Constituent Assembly.

c. ASMA JILANI CASE 1972 [7]; In the famous case of Asma Jilani, a detailed history of the Martial law in the British days has been mentioned and its comparison has been made with the past days.The two appeals, one filed by Miss Asma Jilani in the Punjab High Court for the release of her father Malik Ghulam Jilani, and by Mrs Zarina Gohar in the Sindh High Court for the release of her husband Althaf Gohar, under Article 98 of the Constitution of Pakistan 1962. The detention of Malik Ghulam Jilani and Althaf Gohar had been made under the Martial Law Regulation No.78 of 1971. So the detention of these persons were challenged in Lahore and Karachi High Court respect. The High Court held that it had no jurisdiction because clause 2 of the Jurisdiction of Courts (Removal of Doubts) Order No.3 of 1969 barred the courts from questioning the validity of any act done under the Martial Law Regulation No.78 of 1978. Asma Jilani appealed to Supreme Court which held that this country was not a foreign country which had been invaded by any army with General Agha Mohammad Yahya khan as its Head, nor was it an alien territory which had been occupied by the said Army. Martial Law could not have arisen in the circumstances. Pakistan had its own legal doctrine-The Qur’an, and the Objectives Resolution. Therefore, Martial law was never superior to the Constitution. Supreme Court further held that Yahya khan was neither a victor nor Pakistan was an occupied territory and thus declared him a “Usurper”. All his actions were also declared illegal. When Asma Jilani’s judgment was released, Yahya khan was not in power, but now it was Bhutto’s Martial Law and Bhutto was the chief Martial law Administrator and the president. Asma Jilani’s case paved the way for the restoration of democracy. This case was followed by the interim Constitution of 1972 and then by the permanent constitution of 1973. Due to the judicial pronouncement in the case of Asma Jilani, Bhutto was compelled to remove the Martial law.

d. BEGUM NUSRAT BHUTTO CASE (1977) [8]; On November 10, 1977 the Supreme Court unanimously validated the imposition of martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan’s highest judicial body has proved an honorable protection for military adventure in civil government.it was the illegal action called law of necessity.

e. Steel Mills Case [9]; The court interpreted Article 184(3) as; The court possesses the power to pass any kind of order of nature describe under Article 199 of constitution, as the court deems fit. If the court is of opinion that there is question of Public importance relating to enforcement of any fundamental right was involved. Privatization of Pakistan Steel Mill “PSM” was the first major and important case coming into the limelight in 2006 since then high profile cases against executives were taken up by the SCP more frequently. PSM case was the beginning of the era of judicial activism in Pakistan, the larger bench of SCP annulled the $362 million bid for the privatization of PSM. In its unanimous verdict SCP exposed the number of legal violations, lapses, omissions and commissions by the Privatization Commission and the Cabinet Committee on Privatization. It was believed that SCP’s judgment saved Rs.18 billion losses and Rs. 33.67 billion extra benefit to the bidder.
f. 2009 PCO JUDGES CASE; On 31 July 2009, after hearing constitutional petitions concerning PCO judges, the appointment of judges, and the steps taken in declaring the 2007 Pakistani state of emergency, the Pakistan Supreme Court decided the declaration of emergency rule by Musharraf to be unconstitutional under Article 279 of the Constitution of Pakistan. The Supreme Court also declared the steps taken in declaring the state of emergency to be null and void, and specifically stated that the removal of judges was unconstitutional and illegal. This included the removal from office of the Chaudhry and other justices. The appointment of Dogar and of all justices between 3 November 2007 and 24 March 2008 was deemed unconstitutional.

g. SUO MOTU EXAMPLES;

i. Water shortage across the country;

The top judge made the remarks during the hearing of a case pertaining to pensions. “I will keep taking suo motu notices on education, clean drinking water or health issues,” he said.The chief justice established the Diamer-Bhasha Dam Fund while directing the government to begin construction on the reservoirs to resolve the country’s water shortage.

ii. Hospitals; The chief justice also took suo moto notice on the conditions prevalent at government hospitals in Lahore in January.

iii. Zainab murder case; Chief Justice of Pakistan (CJP) Mian Saqib Nisar on January 11 took suo motu notice of the rape and murder of Zainab, an eight-yearold girl in Kasur. The body of the minor child was found in a garbage dump days after she went missing from her home. Taking notice of the horrific incident, the CJP ordered the IG Punjab to submit a report within 24 hours. The victim’s parents, who had gone to perform Umrah, reached Islamabad an hour after their daughter’s funeral. In October, Imran, who had been sentenced to death for the rape and murder of Zainab and 12 other minors girls was hanged at Lahore’s Kot Lakhpat jail.

4. ADVANTAGES; [10]

• It performs a thorough function of checks and balances for different branches of government.

• It permits a judge to exercise his personal conscience & reasoning upon failure of law.

• Judges can raise voice against laws which are repugnant to welfare of citizens.

• It increases the trust of common man in Court system & judiciary.

5. DISADVANTAGES; [11]

• Any existing law maybe overriden by judges in arbitrary manner, based on personal motives.

• Such exercise of power by judges may set bench marks for ruling other cases.

REASONS INFLUENCING JUDICIAL ACTIVISM IN PAKISTAN; [12]
Judicial activism has gained much popularity today in Pakistan. Due to Public Interest Litigation, justice has prevailed in an effective way. Also judiciary has gained controversy of sudden interference in the tasks of other organs. Though it has promised to enforce the fundamental rights for the citizens through postive interpretation of laws. Benchmarks have been established to carry out the procedure for deliverence of justice
a. Inefficient performance by Legislature & executive: Which includes Sugar crisis, Hajj corruption, Missing persons, Fake medicine, Banking scams etc.

b. Failure of Legislature and Executive to execute the existing Laws: Due to the fact that there is a doubt that these branches have failed the delivery of goods to public which include 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 relevant to the legislature and executive.

c. Inactive System due to corruption & foreign influence: It also occurs because the entire system has been plagued by ineffectiveness and malafide due to corruption, excessive regulation, foreign interference and influence in our domestic affairs and national politics.

d. Violation of Fundamental Rights of People: The infringement of basic human rights has resulted in judicial activism. For example, victims of target killing, suicide bombing, kite-strings, cases of bonded labour, inhuman treatment in jails etc

e. Loopholes in Existing Laws and Punishments: Due to inefficient legislation having weaker force of law as well as abuse of some of the provisions of the Constitution, judicial activism has been active.

f. Other factors include: When the legislature fails to discharge its responsibilities. Weak/Unstable Government. When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration.

THEORIES; [13]
There are basically two theories of judicial activism if we consider the criterion of its origin and evolution.
a. Theory of Vacuum Filing:
According to the theory of vacuum filing, the presence of inaction and laziness of any one organ of the governance results in creation of power vacuum. If any such vacuum is created, it is against the well-being of the nation and may work as a disaster for the country’s democratic setup. As a result it is not being allowed to continue and other forces may expand and fill the vacuum. In the case of judicial activism the vacuum results from the incompetence, inability, lack of discipline and character and do nothing policy from the two organs of our governance viz. the executive and the legislature. Since the vacuum is created, it should be filled and the third organ of the governance viz. judiciary doesn’t have any option but to expand its powers and fill the vacuum. So the so called hyper-activism of the judiciary is the result of the vacuum created by the legislature and the executive.
b. Theory of Social Want:
According to this theory the existing legislations unsuccessful coping of the issues of the country results in judicial activism. When the existing legislations didn’t solve the issues of the country, it becomes necessary for the judiciary to take proper steps and solve the problems. The last method by which they can do it was to provide non-conventional interpretations of the existing legislations so that they can use it to improve the conditions or to solve the problems. As a result judicial activism takes birth. Those who supports the theory believes that judicial activism results in the transformation of the society.

CONLUSION
Judicial activism philosophy that courts should take an active role in solving social, economic, and political problems. Court should uphold the ‘’guardian ethic’’ they act as a guardian of the people.
Examples of judicial activism:

1. Requiring states to provide legal aid for the poor.
2. Requiring prison modernization.
3. Requiring states to educate undocumented aliens.
4. Establishing the ‘’one man, one vote’’ principle to reapportionment.

The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. There is a thin line between activism and overreach. While judicial activism is considered positive to supplement the fallings of the executive, but the overreach into the executive’s domain is considered an intrusion into the proper functioning of democracy.

References;

1. Andrew P. Napolitano: Lies the Government Told You
2. Black’s Law Dictionary
3. Kmiec, Keenan D. (2004). “The Origin and Current Meanings of ‘Judicial Activism'”.
4. Hamid Khan, Constitutional and Political History of Pakistan 3rd ed.
5. PLD 1955 Sindh 96
6. PLD 1955 F.C.387 P
7. PLD 1972 S.C 139
8. PLD 1996 S.C 324
9. Constitution Petition no. 9 of 2006 & Civil Petition N0s. 345 & 394 OF 2006
10. https://connectusfund.org/11-principal-pros-and-cons-of-judicial-activism
11. Ibid.
12. Ahmed, S. (2017). Supremely Fallible? A Debate on Judicial Restraint and Activism in Pakistan. ICL Journal, 9(2), pp. 213-239. Retrieved 17 Jan. 2018, from doi:10.1515/icl 2015-020
13. Judicial Activism by Faisal ul Islam.