LAHORE SCHOOL OF ECONOMICS
Judicial Activism in Pakistan Is it the threat for democracy or the voice raised by the judiciary itself to secure the democracy from the so-called custodians of democracy? Muhammad Khyzer Naveed Comparative Political Systems
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Abstract
It may be a complex paradigm because of the variation in the democratic systems across the globe or the constitutions of the different states but in words which everyone agree, the judicial activism can be defined as "Philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions” (Blacks Law dictionary). The critics of the judicial activism are of the view that it sequesters sequesters the powers of the elected bodies and the other institutions which have the mandate of the people hence damages the rule of law and democracy. On the other hand guardians of the judicial activism propose that it is the interpretation of the law and the interpretation must change with the changing times so it is the legitimate form of the judicial review. S ome of the staunch proponents argue that the judiciary if the source of checks and balances and an d should elaborate its role further to offset the effects of the majoritarianism. This is to secure the rights of the mino rity as the democracy is the will of majority so there should be a voice for the minority. In Pakistan role of Judiciary has been very important because in the past decade it has been the major cause of the dictator’s fall because he tossed judiciary away and faced a lot of criticism and the restoration of the judiciary was the main motto of the parties at the time of election when the current ruling nd
st
parties got the mandate. But in the start of the 2 decade of the 21 century judiciary has sometime come on front as a savior of the th e people but has also showed sho wed itself as the biggest detractor of the current government. So this essay will basically scrutinize the role of judiciary and its actions which it performed in the current democratic term and a highlight high light on the sumoto
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Democracy & Judiciary
Democracy is the rule of the people which means that the people of the state are the sovereign and the governing body will be chosen by the people. The people also hold the right to change the government with the help of the vote. Vote is a way which gives every person an equal authority to change or elect the people who will govern the state. Pakistan is a democratic state which is working under the parliamentary system. system. The people people choose their their representatives representatives and give them them the mandate to sit in the legislative assembly on their behalf. The head of the parliament is the Prime Minister Minister who can be called called as the most most powerful man man of the state because he is chosen by the ones who were chosen by the people of the state. This makes the Parliament the main institution of the state other than the judiciary and the executives. executives. Obviously Obviously there are checks checks and balances on the parliament especially especially on the Prime Prime Minister so so that they can work work for the people as the people gave them the mandate and selected him to be their representative. So if this parliament or any of its acts is declared null and void by other institution then it ruins the whole essence of the democracy as the will of the people is being trampled. In case of the judicial activism if judiciary quenches any law or the act of
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
The answer to the question stated above with respect to the definition of the democracy can be positive but in the case of the Pakistan this cannot be right. On the practical grounds the democracy in Pakistan is being decimated by the corruption which is taking place on the massive scale. To check the working of the parliament the judiciary judiciary has to step in and correct correct the matters matters for the state which which is also for the good of the people. Also the actions of the judiciary or the decisions of the Supreme Court are always in accordance to the constitution of Pakistan and the constitution was made by the parliament, parliament which was chosen by the people and whatever whatever the laws were passed passed or the authorities authorities given given to the Supreme Court were given by the representative of the people. The interpretation of those laws is done by the Supreme Court so this also makes the acts of the Supreme Court fall under the democratic system. So whatever the Supreme Court did in Pakistan was backed by the authority which was given to them by the people. Then how can a democratic act be dangerous for the democracy.
In Pakistan Supreme court addressed some issues and gave some decisions against the ruling body which raised the questions that the judiciary is becoming the threat to the democracy. First the thing which upon which the light should be shed is the
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
parliament this Supreme Supreme Court Court starts the trial trial and if they find the act of the parliament wrong, wrong, they may take the the decision against against the parliament parliament or any member of parliament. The other way of Supreme Court to take over parliament is the sumoto notice which is also criticized by many state and non state agents. This is highly criticized as they think that the supreme court is involving itself in the matters of the state which should be addressed only by the elected members as the people chose the to run the system system on their behalf and they are empowered empowered by the people to raise their their voice.
Steps of the Supreme Court and their references from Constitution The most prominent prominent one in recent times is the disqualification disqualification of the Yousaf Raza Gillani because of which he had to step down from his premiership. He passed some comments about the judiciary and the petition against him was filed by the
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
the trial of the then prime minister Mr.Gillani. his trial was based on the following article of the constitution.
[ article 204 Contempt of Court. In this Article, "Court" means the Supreme Court or a High Court. (1) In A Court shall have power to punish any person who, (2) A (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt contempt of the Court. (3) The The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to
law, by rules made by the Court.]
When the court gave the decision against him then according to the section III, disqualified. In the light of the constitution this cannot chapter 2 article 63 he 63 he was disqualified. be called the act against against democracy
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
The soumoto notices issued by the apex court of Pakistan is another accusation made by the followers of the democracy as they are of the view that it intercepts the working of the parliament. It is also not seen that frequently in any other democratic state. state. Under the article of the constitution 183(3) it is allowed to the supreme court to take the notices notices when the issue issue involves - Large public interests or public at large large -
The reputation of the judiciary is at stakes
-
When there is threat to the reputation of the state and the issue should be addressed immediately.
Under this article the Supreme Court possesses the right to take actions. When the action was taken for the Karachi steel mill same people who know criticize the Chief Justice or the Supreme Court, they used to praise him and considered him the national hero. The other suomoto took by the CJ was on the missing persons case in Baluchistan. They took notice and highly criticized the security forces for their
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
security forces it was not given any importance or nothing indiscreet was done regarding the issue. So if some people accuse SC that they are trying to develop their authority or any such suomoto is not taken any other state then they should look the importance of the cases that the SC addressed.
ARGUEMENTS
David Blunket a veteran politician of the Labor Party UK and also the former Member of Parliament recently passed the comments that the power of courts to overturn the decisions of the parliament is the threat to the democracy. The democrats of the US are also of the same view. These references are often given by some people in Pakistan but for this one has to look the working of their parliament and other institutions and the working of the institutions of Pakistan, where the
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
government then who will come to rescue and who will scrutinize the working of the democracy. In the conclusion to all this, the democracy is the need of the hour and it is the right way of governing the state which gives right to each and every individual to participate in the selection selection of the governing governing body. It is the selection selection of the governing body by the governed. But it is also very idealistic approach and the current government of Pakistan whose politicians are taking the corruption hand in hand with the democracy they propagate. The only good thing about them is that they have the mandate of the people so they have right to sit in the parliament but are they fulfilling every task they are supposed to do? Many instances can be cited where their vested interests dominated the national interests and the democracy was ridiculed by them. They have been criticizing the former government that the damage done by them is of such the magnitude that they need time to rebuild. But the funny part is that things are turning even worse. The price hike seen in recent
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
Trusted by over 1 million members
Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.
the SC of the United States also overruled the act of their congress. If the judiciary of the US can overthrow the decisions of their congress then why cannot the Pakistan’s. US where the rights and protection of the people is secured by the government atleast they try nobody tramples the basic rights of their citizens still the Supreme Court took a stand against the strong government then why cannot it take a stand in Pakistan where most of the issues are not addressed at all. As Supreme Court is working under the constitution or they decision they make is done by interpreting the law, the laws which are made by the parliament, and the parliament which which is chosen by the people, then how how come they accuse accuse the judiciary a threat to the democracy. If the democracy is pure and fulfilling its main task i.e. to give fundamental rights to the people. If its giving them the right to live, protection, shelter shelter only then they can speak of any such things halting halting their way. way. If the democracy is not even addressing the issue of the missing persons where more the 100 people went missing and the government stood silent for more than 3,4