A complicated history of judicial activism

March 19, 2023

In Pakistan, judicial activism has played a crucial role in shaping the political landscape

A complicated history of judicial activism


he term judicial activism is used to describe the Judiciary’s role in interpreting and enforcing the constitution and laws beyond the traditional boundaries of its functions. In Pakistan, judicial activism has played a crucial role in shaping the political landscape. For this, the Judiciary has received both praise for its contribution to strengthening democracy and criticism for causing political chaos.

The history of judicial activism in Pakistan can be traced back to the early years of the country’s independence. During the 1950s and 1960s, the Judiciary played a crucial role in shaping the political landscape. This was especially apparent in the introduction of the ‘doctrine of necessity,’ a legal justification provided for the establishment’s actions that went beyond the bounds of the constitution.

During the 1970s, the Judiciary became increasingly assertive. This was particularly evident in the case of the dismissal of ZA Bhutto’s government in 1977. This was viewed by some analysts as a response to Bhutto’s efforts to limit the Judiciary’s autonomy. However, in the 1980s, during the military regime of Gen Zia-ul Haq, judicial independence was significantly curtailed.

In the 1990s, as democracy was restored in Pakistan, the Judiciary re-emerged as a significant player on the country’s political scene.

It was during the tenure of Justice Iftikhar Muhammad Chaudhry, however, that judicial activism became more prominent and contentious. Justice Chaudhry was the chief justice of Pakistan from 2005 to 2013. During his tenure, he made several groundbreaking decisions that amplified the Judiciary’s authority in the country.

The origins of judicial activism in Pakistan can be traced back to the country’s formative years when the Judiciary played a critical role in upholding the principles of democracy and the rule of law. However, it was during the tenure of Justice Chaudhry that judicial activism reached its zenith. In 2007, the military-backed government of Gen Pervez Musharraf removed Chaudhry from his office.

This action was widely condemned and led to a nationwide protest movement seeking the reinstatement of the chief justice. The Judiciary, played an active role in this movement. In the end, the Supreme Court ruled that his dismissal was unconstitutional. This judgement was perceived as a triumph for judicial activism and a setback for military rule.

Judicial activism has had a significant impact on Pakistani politics, both beneficial and detrimental. On the positive side, it has played a critical role in bolstering democracy and upholding the rule of law. The Judiciary has frequently been called upon to resolve political crises and to ensure that the government operates within the parameters of the constitution and the law. The negative impact of Judicial activism has been the generation of political turmoil.

The Judiciary has been accused of exceeding its jurisdiction and meddling in the political process. Important verdicts rendered by superior courts have frequently been called partial and politically motivated. This has led to a perception that the Judiciary is a political entity rather than an impartial mediator.

One of the most contentious cases of judicial activism was the disqualification of former prime minister Nawaz Sharif.

One of the most contentious cases of judicial activism in Pakistan was the disqualification of former prime minister Nawaz Sharif. In 2017, the Supreme Court removed Sharif from his position on charges of corruption, based on evidence gathered by a Joint Investigation Team formed by the court. The decision was perceived by many as politically motivated.

The disqualification of Sharif triggered political instability and turbulence, with the opposition claiming that the Judiciary had taken a partisan stance in politics. This image of the Judiciary as a political player has eroded the public’s faith in its capacity to serve as a dispassionate mediator, which is a vital component of a democratic system.

The Judiciary bears the onus of ensuring the protection of fundamental rights. It is in this context that the Judiciary has leveraged its authority to advance judicial activism. However, its detractors contend that the Judiciary has been swayed by political coercion and has not unfailingly upheld neutrality. They cite examples where judges have been accused of displaying bias towards specific political factions or individuals, or where their verdicts have been perceived to be politically driven.

The supporters of such judicial activism argue that the superior courts have acted impartially and based their rulings on the rule of law. They highlight instances where the Judiciary has ruled against powerful politicians and institutions, demonstrating its independence and impartiality.

It is crucial for the Judiciary to remain independent and impartial to uphold the rule of law and maintain political stability.

Pakistan’s history reflects a complex relationship between the Judiciary and the Executive. Numerous allegations of political influence on the Judiciary and attempts to manipulate or intimidate judges have surfaced over the years. Recently, concerns have been raised regarding the influence of the military and intelligence agencies on the Judiciary. Moreover, there have been allegations of judges being appointed based on their political affiliations or loyalties.

One of the major issues with the judiciary in Pakistan is the backlog of cases and delays in the dispensation of justice. This has been a persistent problem and has led to a lack of confidence in the judiciary’s ability to provide timely justice. To address this issue, there have been calls for reforms to improve the efficiency of the judicial system and reduce the backlog of cases.

Many argue today that governments should prioritise strengthening the Judiciary and ensuring its independence, rather than attempting to influence or control it for political gain. An independent Judiciary can play a more effective role in upholding the rule of law and promoting democracy in Pakistan.

The author is associated with Jang Group as Legal Advisor, he occasionally writes on legal and human rights issues , He practices law as advocate of the Sindh High Court and also pursue Doctorate Degree in Law from SZABUL.

A complicated history of judicial activism