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Judicial activism

February 11, 2019

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JUDICIAL activism in Pakistan is more egregious and audacious than in other democratic countries. In the US, Supreme Court judicial activism involves expansion of fundamental rights guaranteed by its constitution.

The judicial activism of our SC is more like judicial excessiveness as it erodes some of the bedrock principles on which our constitution and republic are based. Activism by our judiciary may be classified into two broad categories.

First, the SC’s interpretation and use of suo motu provision of Article184 (3) as a limitless jurisdiction and power to issue orders on any matter under the sun on the pretext of fundamental rights of high public importance.

The second category has a long history of meddling in the political domain and dismissing governments besides legitimatising coups and the repeated overthrow of our constitution.

Such activism took root as early as 1955 when in the Tamizuddin case, CJ Munir justified the illegal dissolution of the assembly on the grounds of ‘doctrine of necessity’. From then on, it assumed a life of its own in a stunning series of landmark cases.

To counter such debilitating judicial excesses many legal experts pray to have judges who are free of ambition and lust for power and have a built-in sense of judicial restraint. However, relying only on the judges’ persona for judicial restraint is no solution.

What is needed is a permanent, institutional solution. A two-step constitutional solution may be a remedy.

First, tackle the suo motu powers of Article 184 (3) as this provision doesn’t exist in any constitution in the world in such shape and form. A constitutional amendment should repeal or substantially modify the provision.

If we opt to modify 184 (3) then the SC’s jurisdiction regarding the enforcement of fundamental rights of high public importance should be curtailed to the SC’s jurisdiction for the enforcement of its orders to administrative agencies and to the production of detained citizens (writs of mandamus and writs of habeas corpus).

Second, to reduce judicial activism the superior judiciary should be barred from removing or disqualifying an elected head of government since this can be done in parliament and by the electorate.

These provisions may seem harsh and overbearing, but our nation has suffered much because of judicial excesses. Sometimes unique, drastic situations call for unique, drastic measures.

K. Tausif Kamal

Frisco, Texas, USA

Published in Dawn, February 11th, 2019