The recent wave of judicial activism has been at the expense of parliamentary sovereignty and supremacy
The concept of judicial activism is not novel. It is considered to be a neologism for the term - judicial review, which, in brief, empowers superior courts to adjudicate on the constitutionality of law, statute, administrative action, provisions of the constitution as well as amendments to it. The power of judicial review is exercised worldwide and considered as one of the most effective legal instruments of the judiciary to ensure good governance and democratic stability.
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 factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations, and are willing to ignore precedent."
Judicial activism, in developed nations, such as the United States of America, reflects expansion of fundamental rights enshrined in the Constitution. For instance, in the case titled Roe vs Wade, the US Supreme Court expanded the constitutional right of privacy to include the ‘penumbra’ right to have an abortion, even though the right was not expressly provided in the US Constitution.
However, the Pakistani version of judicial activism is more audacious than what is generally implied in democratic countries. It is used to describe a wide variety of ‘beyond-the-powers’ judicial activity.
Specifically, the suo motu jurisdiction, under Article 184(3) read with 187(1), of our Constitution has empowered the honourable Supreme Court to "make an order", if it considers, "that a question of public importance with reference to the enforcement of any of the Fundamental Rights" has arisen, so as to ensure "complete justice".
It will not be incorrect to state that the former CJP, Justice Iftikhar Muhammad Chaudhry redefined the powers and scope of suo motu jurisdiction under Article 184(3) of our Constitution. The prominence and impact of judicial activism in Pakistan, after the restoration of CJP Iftikhar Chaudhry, can be assessed from the fact that the number of applications submitted in the Human Rights Cell after the restoration of superior judges, increased at a rate of 139,906 applications per day during 2009 to 2011, as opposed to 500 applications per day prior to the restoration of the superior judiciary.
Under Justice Chaudhry, the honourable Supreme Court of Pakistan, in exercise of its power of judicial review, restricted the parliament to partake in the process of judicial appointments. The evolution of jurisprudence under Article 184(3), during the controversial tenure of Justice Iftikhar Chaudhry, reveals that the former CJP, was extremely fond of intervening in every issue, and even tried to control sugar prices, failing to realise that the prices of commodities are controlled by market forces and not through judicial orders.
Who would have thought that Justice Mian Saqib Nisar, one of the leading legal minds of the country and a staunch critic of Iftikhar Chaudhry’s era of judicial raaj through suo motu powers, would himself embark upon the never-ending journey of unnecessarily invoking Article 184(3) of the Constitution. If anything Justice Saqib Nisar’s unprecedented exercise of Article 184(3) surpassed Iftikhar Chaudhry’s excessive use of suo motu powers, it has been reported that as of September 2018, the Supreme Court had concluded over 70 suo motu cases.
As Chief Justice of Pakistan, Justice Saqib Nisar introduced an even more expansive brand of judicial activism in the country. He demonstrated that with a little bit of creativity, almost any issue can be turned into a matter of public importance and an infringement upon fundamental rights. For instance, we watched the former CJP issuing stern directions to owners of private healthcare institutions. We saw him directing the litigants to generously ‘donate’ to the Dams Fund, against their will, to save our ‘future generations’. We witnessed the infamous Sunday court routine of the former CJP - where even private land disputes between family members were termed an issue of public importance. We also observed his perturbed demeanour on the skyrocketing fees of medical colleges.
Who can forget that under Justice Nisar, the honourable Supreme Court, in exercise of its power under Article 184(3), assumed the responsibilities of other state institutions, such as the Election Commission of Pakistan, and determined (through an elaborate judgment exceeding 500 pages) the qualifications for the head of the executive. It became clear that the honourable Supreme Court, in its discretionary jurisdiction under Article 184(3), could basically oust any head of a public organisation, including the prime minister, without a trial.
It is a well-known fact that Justice Nisar has been praised for his rulings on the aforesaid matters by various segments of our society. However, the loyalists and admirers have failed to realise that no matter how well-intentioned the orders/interventions of former chief justice were, there was absolutely no justification for him to do what he was trying to do.
Interestingly, during one of the hearings of a petition concerning water supply and the sewerage system in the province of Sindh, Justice Nisar himself acknowledged and remarked that he was ‘compelled’ to intervene in the functions of the Executive due to the inadequate basic facilities being provided to the citizens. He did not, however, bother to stipulate the reasons for this compulsion.
Both print and electronic media reporters and shutterbugs failed apparently to appreciate that our judiciary’s vastly expanded use of suo motu powers, particularly in the recent past, had affected the balance envisaged in our constitutional framework. Who can possibly suggest any longer that there is separation of powers between the Legislature, Executive, and Judiciary in Pakistan? Or that there is a constitutional/legal delineation of roles? Or a system of checks and balances the three organs of the State?
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In my opinion, the recent wave of judicial activism in the country is not only violative of the code of conduct for judges, issued by the Supreme Judicial Council, but is also morally and legally wrong. The judicial activism during the tenure of former chief justices Iftikhar Chaudhry and Saqib Nisar has been at the expense of parliamentary sovereignty and supremacy. Such judicial activism has blurred the boundaries of trichotomy of powers, making many believe that the law-making process is dependent on courts’ whims.
The saviour syndrome reflected in the judicial activism of the recent past is against the ideals of a democracy, and demonstrates a preference for short-term popularity over long-term constitutional imbalance.
Being an optimist, I hope that the incumbent CJP, Justice Asif Saeed Khan Khosa, as promised, will only invoke suo motu jurisdiction as a last resort and define, once and for all, the contours of this discretionary jurisdiction of the honourable Supreme Court. I also hope that while re-introducing the concept of judicial restraint, the apex court, under Justice Khosa will bolster constitutionalism and rule of law, and strengthen democracy, as envisaged in the preamble to our constitution.