What is judicial Activism?

Before we dwell on the causes and features of judicial activism, let us first understand
what it is. A modern democratic state is built on the principle of
tracheotomy of powers, i.e. the judiciary, executive and legislature have to perform their
won designed functions.
However, it has been observed that even in developed polities, the functioning of the
legislature and executive leave a lot to be desired. Instead of being vigilant and acting as
a check on executive persecution, the legislature becomes its hand-maiden. In addition,
it is slack in enacting laws.
To fill the vacuum resulting from this legislative-executive mal-functioning, the
judiciary has to assert itself by providing relief to the sufferers of tyranny and by
interpreting laws, which are either deficient or vague.




Judicial Activism in Pakistan:
As already identified, Pakistans judicial history is replete with cases like
overturning of Maulvi Tamizuddins appeal, Dossos case and the Nusrat Bhutto case,
where the judiciary bowed to the executives pressure. However, things changed after
1985.
In the Saifullah case in 1988, in spite of the executives strong pressure, it was made
mandatory that elections would be held on party basis. Later, the LHC and the SC both
declared that the Junejo government was dissolved unconstitutionally. By a very active
interpretation of Article 17 of the Constitution, the Nawaz Sharif government was
restored in 1993. Had the SC interpreted the article textually, the case should have been
heard by a High Court at first instance.
However, it was in 1996 that two landmark cases changed Pakistans political landscape
decisively. First, the Supreme Court, by repeated instructions to the effect, forced the
government to promulgate the Legal Reforms Ordinance, 1996, which separated the
judiciary from the executive at the lower level. This ordinance rectified an anomaly and
aberration in our democracy, which had been tacitly supported by ever government in
order to enjoy political clout.
Then in the path breaking Judges case of March 29, 1996, the SC declared that the
Chief Justice of Pakistan would have primacy in the appointment of judges to the
superior judiciary. The consultation with him by the executive, regarding the
appointment of judges, would have to be purposive, meaningful and consensual.
This case has effectively put an end to the executive practice of appointment of judges to
the higher judiciary by over-riding the advice of the Chief Justice of Pakistan.
Justice Sajjad Ali Shah thus brought about a one man judicial revolution in the
country. A novel committee, the Chief Justices Committee was formed, which routinely
castigated executive excesses publicly.
After being rushed through Parliament, the 14th Constitutional Amendment was hailed
as the remedy against the scourge of floor-crossing, which had de-stabilized the
democratic political system in the post-Zia ul Haq era. To this extent, of course, it was a
much needed step. However, it was widely criticized for going far beyond the anti-
defection intent and eroding the very basis of democracy by stifling dissent and
meaningful debate and, thus, violating the freedom of speech guaranteed in the
Constitution. Furthermore, by vesting party leaders with sweeping powers to
unseat legislators and denying judicial redress to the latter, it was seen as having
imposed party dictatorships and political regimentation.
All these issues went before the Supreme Court and its 6-1 verdict has only
partially validated the controversial Amendment. The six judges in favor have
struck down the portions curbing the legislators right to express dissent inside and
outside Parliament. However, almost certainly with an eye to the bitter realities of our
political culture, they were unswayed by the conscience-voting argument and
maintained the compulsion for legislators to vote according to party dictates so as to
bring stability to the polity by eliminating floor-crossing.
Even in allowing this right of verbal dissent, there was a 4-2 split among the
honorable judges. Justices Saiduzzaman Siddiqi and Irshad Hassan held that even
dissent outside the legislature was ultimately damaging to party discipline inside the
House and, thus, for political stability generally. The believed that principled dissent
required the legislator to resign the seat won under a party flag. Hence, they favored
upholding the 14th Amendment in its entirety.
However, the six judges were unanimous in diluting the vast powers given to party
bosses by upholding the right of an unseated legislator to seek remedy from the High
Court and the Supreme Court.
In another landmark judgment, the Supreme Court has declared as invalid several
provisions of the controversial Anti Terrorism Act (ATA), and asked the government to
amend the law accordingly. Headed by Chief Justice Ajmal Mian, a five-member bench
of the apex court heard the case, and upheld the view taken by the Lahore
High Court in an earlier judgment. Among the specific sections of the Act
pronounced as violation of the Constitution and recommended for suitable
amendment are provisions relating to arbitrary powers given in the law-enforcing
agencies to search, open fire and record confessional statements. But, above all the apex
court has ordained the jurisdiction of the High Courts over the special courts established
under the ATA, abolishing the appellate tribunals which were hitherto empowered to
hear appeals against convictions by the special courts.
The striking down of the anti-terrorism law, which critics had from day one judged as a
hasty and ill-conceived piece of legislation, is a welcome judicial intervention. The
Supreme Court, being the watchdog of the constitution, has done what is expected of it.
Needless to say, without a system of checks and balances, even the cherished ideal of the
supremacy of parliament can end up in the tyranny of the majority. Moreover the casual
approach of our elected representatives in the crucial task of law-making is matched
only by the pre-occupation of the executive with arrogating to itself the sole authority to
run the system. Notwithstanding pious intentions, the governments prescription to
combat terrorism was widely seen as an attempt to circumvent the due process of law,
rather than streamlining the system to cope with the imperative of speedy justice.
The Supreme Court judgment has once and for all rejected the concept of
summary trials, and dealt a blow to the executive-sponsored moves to create a parallel
judicial system. Thankfully, the apex court has held in check the pronounced tendency
for arbitrary functioning. It has reaffirmed the independence of judiciary, and thus
safeguarded fundamental rights and civil liberties. Hopefully, this message has been
forcefully brought home to the government. There should now be no ifs and buts in its
response to the Supreme Courts verdict to recast the Anti-Terrorist Act.