The Sanctity of the Separation of Powers
Before we explore judicial activism in Pakistan, we must know that the bedrock of any thriving democracy is in the doctrine of separation of powers between the three main organs of the state: the executive, the legislative, and the judiciary. As per the renowned French philosopher Montesquieu, the intermingling of the distinct roles of various state entities poses a risk of immense magnitude to the emancipation of the state as it could “expose the liberty of the citizens to arbitrary control” (Vile, 1998, p. 99).
Therefore, to safeguard citizens from an unfettered exercise of power by one organ, it is imperative to set distinctive parameters for the authority exercised by all state organs. This includes prescribing for the judiciary a clear jurisdiction of power that they can freely exercise.
The revolutionary British Jurist, Lord Denning, eloquently encapsulated the role of the judiciary in the following terms, “to interpret the law and mould it to meet the needs of changing time… (while remaining) outside the sphere of politics” (Lord Denning, 1963). Thus, the judicial prerogative is defined as being able to dispense justice without assuming the role of a law-making body, and staying apolitical in the treatment of parties who approach the court for judicial remedy.
The Unrestrained Judicial Activism in Pakistan
However, this role has been offset in recent years by the emergence of a new phenomenon, referred to as “judicial activism”. While the legal fraternity remains divided over the exact meaning of the phrase, the widely accepted definition, as enunciated by George W Bush, describes it as the proclivity of the judges “to legislate from the bench” (Kmiec, 2004). Therefore, judicial activism can be pronounced as the usurpation of the legislative and executive functions by the judiciary with the motive of expanding the scope of its own power.
In Pakistan, judicial activism finds its genesis in the Lawyer’s Movement of 2007, which started with the goal of restoring the then Chief Justice of Pakistan (CJP), Iftikhar Chaudhry, who had been dismissed by General Musharaff’s dictatorial regime for refusing to legitimize the subversion of the Constitution. Thus, the entrance of jurists into the murky domain of politics was initially lauded as being a symbol of dissent against an overtly authoritarian regime.
However, things took a turn for the worse when following his reinstatement, CJP Iftikhar Chaudhry, with a single stroke of his pen, dismissed over 110 judges who had not tendered their resignation after his dismissal as the CJP. This move showed Pakistan that judicial activism did not only have the propensity to bulldoze any dissent which arose in their ranks but they were also willing to circumvent the democratic process to pursue their underlying political ambitions.
The correct process to dismiss a judge under Article 209 of the Constitution of Pakistan, 1973 is to file a report before the Supreme Judicial Council, which then decides whether there is sufficient evidence of misconduct or lack of mental capacity for dismissal.
The Sweeping Suo Motu Powers
Although proponents of judicial activism argue that it merely seeks to uphold the rule of law in the country, recent precedential developments in Pakistan illustrate that all these discussions for constitutionalism are merely a guise for the judiciary to broaden the extent of its jurisdiction, ramp up the scale of its popularity, and lend support to its political cronies while settling personal scores against those who have “wronged” it in the past.
However, judicial impartiality can still be achieved if the judiciary diverts the invocation of its suo-motu powers from politically charged cases to those which pose actual socio-legal conundrums. To understand the expansion of the judicial prerogative over the recent years, it is imperative to first have an understanding of the suo motu power exercised by the country’s apex court, the Supreme Court of Pakistan (SC).
The suo motu power, often defined as public interest litigation, deals with the original jurisdiction of the Supreme Court to hear cases on its own accord under Article 184 (3) of the Constitution. The two prerequisites for the invocation of Article 184 (3), as pronounced in the Constitution, are that the petition filed (i) must pertain to a matter of public importance (ii) and deal with a breach of fundamental rights that have been enunciated in the Constitution.
While the Constitution sets clear procedural requirements to necessitate the invocation of suo motu powers, the judiciary has shown its penchant for relaxing these prerequisites to “make general recommendations” to other public organs (Manzar, 2018). Although these “recommendations” are generally made under the pretense of safeguarding inalienable human rights, leading legal experts are of the view that they merely serve to super-impose judicial will over other state entities.
In fact, these views find credence even within the judicial circles, with jurists such as Justice Ramday blatantly admitting in Chief Justice Iftikhar Chaudhry v President Of Pakistan that “courts are (more) inclined to extend their jurisdiction instead of curtailment”. The brazen acceptance of such jurisprudential encroachments has elicited has some harsh condemnation from critics of suo motu powers.
Justice Fazal Karim (2019, p. 228), a retired judge of the Supreme Court and a constitutional expert, claims that the use of these powers is not only “wholly inconsistent” with the doctrine of separation of powers but also a “subversion of the constitutional mandate”. However, in the country’s 71-year history, the judiciary had not always been at the centre of such extra-constitutionalist behavioural allegations.
Encroaching on Legislative and Executive Domains
To understand the nature of these accusations, one cannot simply overlook the suo-motu “legacy” left by the former CJP, Iftikhar Chaudhry. During his six-year tenure as the CJP, Chaudhry did not only set the tone for “assertive judicial authority” but also began taking suo motu notice on matters where it was unheard of the Supreme Court to meddle (Manzar, 2018).
At the pinnacle of Chaudhry’s reign, the apex court independently began dealing with issues as trivial as determining whether the “government was allowed to set prices of street food” to admonishing cellular service providers for imposing taxation on mobile services (Javed, 2021). These judicial acrobatics were further purported by CJP Saqib Nisar, who at the helm of the SC, decided that it lay within the prerogative of the judiciary to single-handedly deal with the water scarcity malaise encompassing Pakistan.
Notwithstanding his pre-CJP convictions, Nisar’s activist proclivities as the CJP placed him at odds with the politicians of the country numerous times. For instance, when he decided to take suo motu notice on the dual nationalities held by politicians who had been recently elected to the Senate, public outcries were raised against the political motives underlying this move (Malik, 2021).
However, Nisar’s activist propensities did not stop at reprimanding the political elite for maladministration or “creating awareness” for Pakistan’s water scarcity crisis, the ex-CJP would also take it upon himself to visit the country’s sick in the most Mother Teresa-esque possible, reminding the country of his benevolent role of the proverbial “grandfather” (Rehman, 2019).
Unfortunately, both Nisar and his predecessor failed to realise that their activist acrobatics were rendering more harm than good to the country. Not only did these interferences undermine the role of the Parliament and elected representatives of the country but they also placed the judiciary under backlash for interfering within the political amphitheatre (Jamal, 2018).
Survey Results
To determine if the public were of the same perception, we conducted an independent survey in the Lahore University of Management Sciences (LUMS). Of the 45 randomly selected participants, 90 percent were of the belief that the Pakistani judiciary tampered with the political dynamics. When further asked to opine whether these encroachments were rightful, more than 80 percent of the participants vehemently disagreed with the notion of judicial interference in politics (Katchela, 2021).
In a country such as Pakistan, where the risk of democratic subversion is never too far-fetched, preserving the sanctity of the judiciary in the minds of the public is of paramount importance. If the literate and liberal minds of LUMS express such concerns over the judiciary’s growing prerogative, the reprimand that it receives from the general public is likely to be much harsher and more unforgiving.
The US Justice, Learned Hand, once said that “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it” (Fire, n.d.). Hence, if such encroachments diminish the confidence that the masses vest within the judiciary, then it is imperative to halt them before all such faith evaporates from the hearts of men and women.
When questioned about the role of media in affecting judicial outcomes, Lord Denning replied that “(it is the task of the judges) to dispense justice and to uphold the rule of law irrespective of the public clamour” (Lord Denning, 1963). However, one of the most serious accusations levied upon Pakistan’s senior judiciary is that it only tends to “pass observations that get prime-time slots on the country’s 40 private television news channels” (Javed, 2021).
In fact, the survey findings reported that more than 55 percent of the participants believed that the Supreme Court would only invoke its suo-motu power in cases that had media hype surrounding them (Katchela, 2021). Such perceptions are tremendously detrimental for an organ such as the judiciary which must always command the respect of the public to ensure that its decisions are accepted far and wide (Lord Denning, 1963).
Defiling Judicial Impartiality
In Pakistan’s case, the judiciary’s penchant for populism and its proclivity to surrender to the whims of the masses give credence to these allegations. Justice Jawwad S Khwaja, former CJP, once defined judges of the Supreme Court as “the representatives of the will of the people” (Kureshi, 2019). Such notions are damaging, as they do not only undermine the political mandate of the actual representative of the will of the people (i.e., parliamentarians) but they also make the judiciary more prone towards passing pro-majoritarian decisions.
A prime example of this can be seen in the Islamabad High Court’s (IHC) judgement in the Allah Wasaya case (PLD 2019 ISB 62) which pertained to the profession of religious identity by members of the Ahmedi faith. The court, in accordance with the views upheld by populist Sunni Ulemas, issued directives forbidding the disciples of “Qadiniyat” from concealing their religious identities: a flagrant contravention of religious liberties professed under Article 20 of the Constitution.
Such decisions, which are fuelled by the motive of appeasing the masses at large, are detrimental to the liberties of the marginalized sections of the community that do not hold much sway over populist rhetoric. Therefore, by falling victims to the fads of populist narrative, activist judges tend to overlook their primary task of safeguarding the subjugated from majoritarian forces.
Another issue with judicial activism is that it can lead to prejudicial proceedings and biased rulings. Activist judges have ofttimes been accused of letting their political/non-political cronies go scot-free while imposing unnecessarily harsher judgements against their “ideological foes” in cases of the same nature. A classic example of this is the stark dichotomy between IHC’s judgement over the potentially contemptuous remarks passed by the current premier, Imran Khan, and the opposition party member, Talal Chaudhry.
In an address to the nation, PM Khan purported the view that a discrepancy existed between the court’s treatment of the poor and rich, but the IHC held that such remarks amounted to “mere criticism and not contempt” (Naseer, 2019). However, when views of a similar nature were opined by Mr Chaudhry, the courts held that such assertions did not only fall within the ambit of contempt but also “scandalized the court”, therefore necessitating stringent punishment against Mr. Chaudhry (Naseer, 2019).
Such disparities have adversely impacted public perception regarding judicial impartiality within the country. As per the findings of the survey, more than 85 percent of the participants believed that the judiciary tends to lend varying degrees of favours to its political allies (Katchela, 2021). The dismissal of the former PM, Nawaz Sharif, was often brought up in our discussions with the participants, who saw the ex-PM’s disqualification as a prime example of judicial victimization of its “ideological foes”.
Waning Public Trust
Another contention raised by the participants was the lack of judicial accountability against the perpetrators of white-collar crimes, including high-ranking military officers, bureaucrats, judges, lawyers, and business tycoons. These incongruities had convinced more than 70 percent of the participants that the Pakistani judicial system did not adequately dispense justice (Katchela, 2021).
Such findings pose a massive concern for the judiciary and all its relevant stakeholders, as they underscore the dissolution of public trust vested within the impartial functioning of the judicial branch. To uphold the sanctity of the judicial institutions in the country, it is imperative to not only dispense justice but also to do so in a manner that appears to be right.
As illustrated above, judicial activism coupled with the judiciary’s never-ending thirst for expanding the scope of its power has severely damaged its reputation in the court of public opinion. This has been further exacerbated by the recent Supreme Court order pertaining to the demolition of Nasla tower which would deprive hundreds of families of the shelters of their households (Baloch & Akhter, 2021).
Judicial Reforms
Public outcries have been raised against such intrusive judicial decisions and the use of judicialization as a masquerade for furthering political agendas. If assertive action is not taken against such expansionary proclivities, the judicial institutions run the risk of losing the last vestiges of public faith bestowed in them. Therefore, to prevent extra-constitutional expansions of judicial authority and reinstate public faith in judicial impartiality, it is imperative to undertake reforms that refurbish the existing judicial structure.
First and foremost, there needs to be stricter adherence to the procedural requirements pertaining to the invocation of suo motu powers. The broader interpretation of these powers has laid grounds for the apex court to expand its jurisdiction from an “arbiter of law” to an “arbiter of political questions” (Manzar, 2018). This can only be resolved by promulgating legislation that curtails the scope of suo motu power, and only permits its invocation when pertinent questions of law arise.
Secondly, emphasis needs to be placed on promoting transparency in judicial decisions. Judgements that are passed through opaque channels are likely to elicit doubt and concern over the extent of their neutrality. Similarly, the appointment of judges must also be made within the prisms of transparency. This can allow to clear up any misapprehensions pertaining to the preconceived political biases and affiliations of the judges, ultimately giving more credibility to their decisions.
Thirdly, the selection process for appointing a judge needs to be more filtered and methodical, with a key focus on selecting such judges to the higher courts who are “less vulnerable to outside interference” (USAID, 2002). A more rigorous appointment process can ensure that power-driven candidates can be filtered out at the subordinate court level, and more reserved, well-rounded, and well-intentioned candidates can be promoted to the upper echelons of the country’s judicial edifice.
Implementing and publicising these reforms can go a long way in enhancing the stature of the courts in the public domain, and that too at a time when our judicial institutions urgently need such good faith. Conclusively, as per the findings of this research, there is sufficient evidence to suggest that judicial activism has severely damaged the notion of the judiciary of Pakistan being an unbiased mediator of law.
Judiciary’s growing fondness for power amalgamated with its political acrobats has raised massive concerns over its ability to adjudicate fairly and without any prejudices. This can result in a severe deficit of public trust in the sanctity of these institutions if immediate actions are not undertaken to prevent the unsolicited expansion of judicial prerogative. Hence, to ensure the reverence for the social contract between judicial institutions and the public, it is necessary to implement judicial reforms that keep such activist tendencies under control.
References
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- Fire. (n.d.). “The Spirit Of Liberty” Speech by Judge Learned Hand, 1944. https://www.thefire.org/first-amendment-library/special-collections/the-spirit-of-liberty-speech-by-judge-learned-hand-1944/
- Jamal, U. (2018, May 1). Democracy and Judicial Activism In Pakistan. The Diplomat. https://thediplomat.com/2018/05/democracy-and-judicial-activism-in-pakistan/
- Javed, U. (2021, November 29). Judicialisation as politics. DAWN. https://www.dawn.com/news/1660848
- Karim, F. (2019) Change is the only Constant. Pakistan Law House.
- Katchela, A. Y. (2021, December) Judicial Impartiality Survey. https://docs.google.com/forms/d/1AoEwznwPyNDAobqz_X3XWhaEmd3fMF_EwvJDdDSvKqY/edit#responses
- Kmiec, K. D. (2004). The Origin and Current Meanings of “Judicial Activism.” California Law Review, 92(5), 1441–1477. https://doi.org/10.2307/3481421
- Kureshi, Y. (2019, February 1). What is judicial populism and how does it work in Pakistan?. DAWN. https://www.dawn.com/news/1461194
- Lord Denning. (1963). THE FUNCTION OF THE JUDICIARY IN A MODERN DEMOCRACY. Pakistan Horizon, 16(4), 299–305. https://www.jstor.org/stable/41392774
- Malik, H. (2021, November 23) The mixed legacy of CJP Nisar. The Express Tribune. https://tribune.com.pk/story/2330737/the-mixed-legacy-of-cjp-nisar
- Manzar, S. (2018). A Concoction of Powers: The Jurisprudential Development of Article 184 (3) & Its Procedural Requirements. LUMS Law Journal, 8, 6-26, https://sahsol.lums.edu.pk/law-journal/concoction-powers-jurisprudential-development-article-184-3-its-procedural-requirements
- Naseer, T. (2019, November 26) ‘Courts do not fear criticism’: IHC dismisses contempt petition against PM Imran. DAWN. https://www.dawn.com/news/1518957
- Rehman, A. (2019, February 22). Fund donations never intended for building of dam, only for awareness: ex-CJP. DAWN. https://www.dawn.com/news/1465408
- USAID. (2002). Guidance for Promoting Judicial Independence and Impartiality. .
- Vile, M. J. C. (1998). Constitutionalism and the Separation of Powers (2nd ed.). Liberty Fund Inc.
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