LAHORE SCHOOL OF ECONOMICS

Judicial Activism in
Pakistan
Is it the threat for democracy or the voice
raised by the judiciary itself to secure the
democracy from the so-called custodians of
democracy?
Muhammad Khyzer Naveed
Comparative Political Systems

Abstract
It may be a complex paradigm because of the variation in the democratic systems across the
globe or the constitutions of the different states but in words which everyone agree, the judicial
activism can be defined as "Philosophy of judicial decision-making whereby judges allow their
personal views about public policy, among other factors, to guide their decisions (Blacks Law
dictionary). The critics of the judicial activism are of the view that it sequesters the powers of
the elected bodies and the other institutions which have the mandate of the people hence
damages the rule of law and democracy. On the other hand guardians of the judicial activism
propose that it is the interpretation of the law and the interpretation must change with the
changing times so it is the legitimate form of the judicial review. Some of the staunch proponents
argue that the judiciary if the source of checks and balances and should elaborate its role further
to offset the effects of the majoritarianism. This is to secure the rights of the minority as the
democracy is the will of majority so there should be a voice for the minority. In Pakistan role of
Judiciary has been very important because in the past decade it has been the major cause of the
dictators fall because he tossed judiciary away and faced a lot of criticism and the restoration of
the judiciary was the main motto of the parties at the time of election when the current ruling
parties got the mandate. But in the start of the 2nd decade of the 21st century judiciary has
sometime come on front as a savior of the people but has also showed itself as the biggest
detractor of the current government. So this essay will basically scrutinize the role of judiciary
and its actions which it performed in the current democratic term and a highlight on the sumoto
actions it took in the past few years and it effects on the government and democracy.

Democracy & Judiciary

Democracy is the rule of the people which means that the people of the state are
the sovereign and the governing body will be chosen by the people. The people
also hold the right to change the government with the help of the vote. Vote is a
way which gives every person an equal authority to change or elect the people who
will govern the state. Pakistan is a democratic state which is working under the
parliamentary system. The people choose their representatives and give them the
mandate to sit in the legislative assembly on their behalf. The head of the
parliament is the Prime Minister who can be called as the most powerful man of
the state because he is chosen by the ones who were chosen by the people of the
state. This makes the Parliament the main institution of the state other than the
judiciary and the executives. Obviously there are checks and balances on the
parliament especially on the Prime Minister so that they can work for the people as
the people gave them the mandate and selected him to be their representative. So if
this parliament or any of its acts is declared null and void by other institution then
it ruins the whole essence of the democracy as the will of the people is being
trampled. In case of the judicial activism if judiciary quenches any law or the act of
the parliament or take hold of some issues and addresses it itself then is it
becoming the threat to the democracy?

The answer to the question stated above with respect to the definition of the
democracy can be positive but in the case of the Pakistan this cannot be right. On
the practical grounds the democracy in Pakistan is being decimated by the
corruption which is taking place on the massive scale. To check the working of the
parliament the judiciary has to step in and correct the matters for the state which is
also for the good of the people. Also the actions of the judiciary or the decisions of
the Supreme Court are always in accordance to the constitution of Pakistan and the
constitution was made by the parliament, parliament which was chosen by the
people and whatever the laws were passed or the authorities given to the Supreme
Court were given by the representative of the people. The interpretation of those
laws is done by the Supreme Court so this also makes the acts of the Supreme
Court fall under the democratic system. So whatever the Supreme Court did in
Pakistan was backed by the authority which was given to them by the people. Then
how can a democratic act be dangerous for the democracy.

In Pakistan Supreme court addressed some issues and gave some decisions against
the ruling body which raised the questions that the judiciary is becoming the threat
to the democracy. First the thing which upon which the light should be shed is the
scenarios under which the Supreme Court can step in and dominate the democracy.
The simple way is if anyone files the petition against any act or law passed by the

parliament this Supreme Court starts the trial and if they find the act of the
parliament wrong, they may take the decision against the parliament or any
member of parliament. The other way of Supreme Court to take over parliament is
the sumoto notice which is also criticized by many state and non state agents. This
is highly criticized as they think that the supreme court is involving itself in the
matters of the state which should be addressed only by the elected members as the
people chose the to run the system on their behalf and they are empowered by the
people to raise their voice.

Steps of the Supreme Court and their references from Constitution

The most prominent one in recent times is the disqualification of the Yousaf Raza
Gillani because of which he had to step down from his premiership. He passed
some comments about the judiciary and the petition against him was filed by the
opposition parties. In response to those petitions the apex court of Pakistan started

the trial of the then prime minister Mr.Gillani. his trial was based on the following
article of the constitution.

[ article 204 Contempt of Court.

(1) In this Article, "Court" means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who,
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the
Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the
Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to
law, by rules made by the Court.]

When the court gave the decision against him then according to the section III,
chapter 2 article 63 he was disqualified. In the light of the constitution this cannot
be called the act against democracy.

The soumoto notices issued by the apex court of Pakistan is another accusation
made by the followers of the democracy as they are of the view that it intercepts
the working of the parliament. It is also not seen that frequently in any other
democratic state. Under the article of the constitution 183(3) it is allowed to the
supreme court to take the notices when the issue involves
- Large public interests or public at large
- The reputation of the judiciary is at stakes
- When there is threat to the reputation of the state and the issue should be
addressed immediately.
Under this article the Supreme Court possesses the right to take actions. When the
action was taken for the Karachi steel mill same people who know criticize the
Chief Justice or the Supreme Court, they used to praise him and considered him the
national hero. The other suomoto took by the CJ was on the missing persons case
in Baluchistan. They took notice and highly criticized the security forces for their
negligence. Supreme Court also took notice on the Karachi situation and
summoned the authorities and asked for the current situation and their steps
regarding that. All these above steps took by the Supreme Court were for the
betterment of the people and not to show their powers over the parliament. If the
parliament fails to take notice of the issues such as the missing persons case where
around 130 people went missing in almost couple of years and to the shame of the

security forces it was not given any importance or nothing indiscreet was done
regarding the issue. So if some people accuse SC that they are trying to develop
their authority or any such suomoto is not taken any other state then they should
look the importance of the cases that the SC addressed.

ARGUEMENTS
David Blunket a veteran politician of the Labor Party UK and also the former
Member of Parliament recently passed the comments that the power of courts to
overturn the decisions of the parliament is the threat to the democracy. The
democrats of the US are also of the same view. These references are often given by
some people in Pakistan but for this one has to look the working of their parliament
and other institutions and the working of the institutions of Pakistan, where the
court had to step in to rescue or to highlight the issue which was not addressed
properly. Every government comes and criticizes the legitimacy of the former
government. But still they think that the Pakistan is on the right track towards
democracy and it should not be interrupted in its way. For them this is being done
by the SC which is trying to stop the democracy to progress. But the question is
that if the SC will sit silently in the issues which are not addressed by the

government then who will come to rescue and who will scrutinize the working of
the democracy.
In the conclusion to all this, the democracy is the need of the hour and it is the right
way of governing the state which gives right to each and every individual to
participate in the selection of the governing body. It is the selection of the
governing body by the governed. But it is also very idealistic approach and the
current government of Pakistan whose politicians are taking the corruption hand in
hand with the democracy they propagate. The only good thing about them is that
they have the mandate of the people so they have right to sit in the parliament but
are they fulfilling every task they are supposed to do? Many instances can be cited
where their vested interests dominated the national interests and the democracy
was ridiculed by them. They have been criticizing the former government that the
damage done by them is of such the magnitude that they need time to rebuild. But
the funny part is that things are turning even worse. The price hike seen in recent
years is worse than any other inflation seen by the states. The foreign debts have
exceeds by two folds. How much time will they require to rebuild the damage done
in the Musharraf regime? They have already taken more than 4 years but nothing
noticeable is done by them to recover things. In these worst scenarios if the SC of
the Pakistan will not address issues then which institution will come to rescue
people. The finest democracy of the present world is the US but in the recent days

the SC of the United States also overruled the act of their congress. If the judiciary
of the US can overthrow the decisions of their congress then why cannot the
Pakistans. US where the rights and protection of the people is secured by the
government atleast they try nobody tramples the basic rights of their citizens still
the Supreme Court took a stand against the strong government then why cannot it
take a stand in Pakistan where most of the issues are not addressed at all. As
Supreme Court is working under the constitution or they decision they make is
done by interpreting the law, the laws which are made by the parliament, and the
parliament which is chosen by the people, then how come they accuse the judiciary
a threat to the democracy. If the democracy is pure and fulfilling its main task i.e.
to give fundamental rights to the people. If its giving them the right to live,
protection, shelter only then they can speak of any such things halting their way. If
the democracy is not even addressing the issue of the missing persons where more
the 100 people went missing and the government stood silent for more than 3,4
years than the people will want the Supreme Court to threat the democracy which
is not giving them their basic rights.