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Outcome of judicial activism

January 02, 2013

THE PPP chairman, Bilawal Bhutto Zardari, in his first public speech, underlined the exercise of judicial activism by the Supreme Court of Pakistan and objected to the court’s performance.

He raised questions about the role of the court vis-à-vis ensuring effective governance in the state instead of concentrating on its basic duty of providing justice.

The PPP chairman essentially wants the Supreme Court to exercise judicial restraint because he feels that the judiciary is interfering in the executive’s domain, and by doing so is affecting day-to-day governance for which his party is under immense criticism.

Do Mr Bhutto Zardari’s views stem from political rhetoric or do they have relevance to the extensive debate on judicial activism and restraint? I think his questions have focused on a very important and sensitive debate in Pakistan. And the need of the hour is to end this debate by taking it to its logical conclusion in a decorous manner.

Judicial activism is an aspect of judicial decision-making, whereby judges allow their personal views on public policy, among other areas, to guide their decisions. The judiciary in Pakistan, especially after it was restored in 2009, seems to have given thought to the definition of the 19th-century German theologian and writer David Strauss.

According to Strauss, judicial activism can be defined as one or more of three possible actions including overturning laws as unconstitutional, overturning judicial precedent and ruling against a preferred interpretation of the constitution.

Judicial restraint, being a rule of interpretation, requires judges to restrict and limit their own power (of judicial review) and to be hesitant to strike down laws, unless they are utterly unconstitutional, and to exercise temperance in interfering with the executive’s affairs.

This philosophy is evident in the way the Supreme Court of Pakistan is seen to discharge its judicial functions. It has used its powers of suo motu and judicial review. This relatively new approach to dealing with matters related to public policy in Pakistan has received a divided response from the media, civil society and politicians.

In fact supporters of judicial restraint believe that judicial activism does not find space in the scheme of separation of powers under the constitution. They say that judicial activism, taken up so frequently by the media, has become routine, and common litigation is more the exception than the norm. They term these as judicial interference in the executive domain and as negating the tenets of a fair trial.

On the other hand, defenders of judicial activism applaud the courts for breaking with the cold approach of judicial restraint. While defending the judiciary they give the inability of the government and poor governance as reasons for judicial interference.

In my opinion, in the presence of over 20,000 pending cases, criticism of the Supreme Court of Pakistan is not without reason. But it would also be wrong to deny the positive changes brought about by the incumbent superior judiciary through judicial activism.

The biggest change that has resulted through judicial activism is the fear of ruthless accountability by the (superior) courts.

This change in the conventional mindset of both the judiciary and public emerged during the movement for the restoration of the judiciary and began to take shape when the Supreme Court retired dozens of judges for taking oath under the PCO despite a restraining order. It paved the way forward when it sent home an elected prime minister after putting him on trial in an open court.

Prior to these events, the courts had always opted to avoid confrontation with the executive especially when a military-led dispensation was in place. Besides endorsing martial law regimes, the courts stuck with ‘judicial restraint’ and were hesitant to interfere in matters related to the top executives.

The adoption of judicial activism by the judges has certainly brought about a huge change in the administrative scheme of the country where the judiciary has emerged as one of the most powerful institutions.

It has helped put powerful and effective checks on the abusive and arbitrary use of authority and powers by the political and civil bureaucracy. Human rights violations have been noticed in a much more forceful and effective manner.

The credit for this change also goes to the democratic governments, an active civil society and a bold, vocal media.

Unlike military governments and previously unreceptive democratic administrations, the incumbent federal and provincial governments have played their role in helping the effectiveness of this judicial activism materialise by endorsing those decisions that would probably not have found mention in the chronicles of historical and flawless legal judgments if coded by those adhering strictly to judicial conventions.

In addition to the executive checks this judicial activism has also strengthened belief in constitutional supremacy. For the first time in Pakistan, political parties and the media firmly believe that any military takeover would no longer find judicial endorsement.

The problem with judicial activism lies in what may be perceived as the judges’ personal views on public policy. There is a danger that sometimes judges, being human, may miss the fine line dividing interpretation and the rewriting of laws.

This has resulted in unease and that is why the supreme judiciary, despite the positive aspects of its rulings, has not been able to avoid criticism as some political parties may see this activism as unwarranted and unnecessary interference in the administrative and economic affairs of the state.

The writer is a lawyer.