Judicial activism and the evolution of Pakistan's culture of power (original) (raw)
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Two steps forward one step back: The non-linear expansion of judicial power in Pakistan
ICON, 2018
Pakistan's superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country's postcolonial history. Although the political salience of the Supreme Court's recent actions-including the disqualification of two elected prime ministers-has created the sense of a sudden and ahistorical judicialization of politics, the courts' prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of "administrative law." It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan's superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law-i.e., the judicial review of executive action.
Supremely Fallible? A Debate on Judicial Restraint and Activism in Pakistan
Despite a rich history of judicial review, the activism witnessed during the tenure of former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (2005–2013 1) was generally seen as unprecedented in Pakistan and eventually had the court being accused of po-liticization, judicial overreach and even 'judicial terrorism'. 2 This paper examines the calls for 'strategic judicial restraint' in the sphere of economic decision-making within Pakistan's broader socio-political context. The Chaudhry court's activism is mapped against the historic trajectory of judicial review in Pakistan, particularly the cases pertaining to military takeovers and administrative law. It is contended that the seeming expansion of the frontiers of judicial review merely mark the renegotiation of political power between the judiciary, the military as well as political and economic elite. Further, it is argued that the economy was the most convenient amphitheatre for this battle for greater political relevance by and among the political actors in contemporary Pakistan and not, as alleged, what was actually being fought over.
2016
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that...
Constitutionalism and the Dilemma of Judicial Autonomy in Pakistan: A Critical Analysis
2019
This work provides a twofold nature in relation to the law of Pakistan: firstly, constitutionalism being a broad public law concept applies to an analysis of the ongoing development and gradual maturing of this phenomenon in Pakistan. This endeavor helps place the thesis into a rich field of legal and law related literature that examines the trajectories of post-colonial countries in terms of their constitutional struggle and related developments. It provides a more descriptive framework that is useful in its own right as an orderly exposition of largely existing knowledge, ideally with updates on recent significant developments that major scholarly contributions from the earlier times did not yet included. Secondly, this thesis examines the dilemma of judicial activism, which is also referred to as public interest litigation. It endeavors to assess the extent to which judiciary of Pakistan may act as an autonomous entity that can rightfully set itself up as being somehow superior t...
The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan
25 Washington International Law Journal 447, 2016
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.
2021
In constitutional history of Pakistan, judiciary significantly contributed in shaping and re-shaping of state organs. After restoration of de jure judiciary in 2009, it has exceptionally secured autonomy from military as well as civilian governments. The emergence of proactive judiciary divided legal scholarship into two competing discourses: proponents and opponents of judicial activism. The proponents justified this judicial activism for democratic consolidation and constitutionalism whilst the opponents considered it as a tool to undermine civilian government at the expense of its autonomy with the help of selective adjudication. Excessive judicial activism creates impediments for other state organs and may create public distrust in elected representatives at the cost of nonelected despots. The research at hand aims to investigate both these concepts with the help of qualitative research methodology and identifies potential issues associated with the prevalent institutional trans...
The study deals with the significant role of judicial activism in different eras in Pakistan. It examines the role of judicial institutions in damaging the democratic culture of the country. Since the independence of Pakistan, frequent military interventions were validated by the Superior Judiciary of Pakistan. The study discussed these landmark cases which dented the doctrine of Separation of Power in the county. The concept of judicial review has been originated and developed in Britain, and later reached the US in Marbury v. Madison. The history of Pakistan is marred by several instances of Judicial Activism, in which the jurisdiction of the judiciary encroached upon the domain of legislature and executive. In this study, the activism of populist Judges, Justice Iftikhar Chaurdhty and Justice Saqib Nisar has been compared. Their Judicial actions have been discussed in which the domain of the executive has been compromised. The populist actions of Judges dent the independence of the Judiciary and lead to judicial impartiality, as in several cases, different verdicts are observed in the same nature cases. The study concluded by establishing the link between Judicial activism and Separation of powers, as all organs of the states have constitutional limits to work within, The researchers also proposed some judicial reforms, that will maintain the sanctity of the Doctrine of Separation of Power while exercising Judicial Activism.