JUDICIAL ACTIVISM AND SUO MOTO
By:
JAVWAD TARIQ NASIM
(Advocate High Court)
(L.L.B Honours,
(L.L.M in International and Commercial Law,
Judicial Activism:
The concept of judicial activism was created and introduced
by "Arthur Schlesinger Jr." (an American historian and social critic)
to the public in a Fortune magazine article in January 1947.[1]
For an informal definition one can phrase out Judicial
Activism as being the process or concept in a judicial system that justifies
making decisions which are contrary to established precedents and laws, whether
statutory or constitutional. Such decisions are applauded by the general public
rather than juristic philosophers and writers.
Numerous legal and non-legal sources have attempted to
define the word and have done so successfully in various different expressions.
Some of the good sources need to be quoted here as follows:
"A philosophy of judicial decision-making whereby
judges allow their personal views about public policy, among other factors, to
guide their decisions, usu. with the suggestion that adherents of this
philosophy tend to find constitutional violations and are willing to ignore
precedent."[2]
The term "Judicial activism" is different from the
term "An Activist judge" and should not be confused to mean the same
because the former relates to the definitions and concepts defined above while
the latter may be referring to a judge who has not literally overturned an
established rule or principle but has just given an important judgement/decision on an important law point. Important
decisions on points of law even though not in conflict with established laws
will be an activist decision by an activist judge. Thereby meaning that the
progress of the judiciary is also linked to the term "activism".
The concept of judicial activism especially to laymen is
more of a "protector of individual rights" rather than a concept of
"restraining constituional violations even if it
involves ignoring precedents" even though both concepts are one of a kind
when it comes to their effect in their application.
The Debate - Arguing For and Against
Judicial Activism:
It is difficult to say whether the concept of judicial
activism has made more critics of itself or supporters but in the view of its
critics of `the application of the concept usurps power of the legislature,
thereby diminishing the rule of law and democracy'. The main objection with the
concept is that in the view of its critics, the Courts (Judiciary) are
established to rule upon (uphold) the rules and legislation drafted by the
legislature and not to check the validity of the legislation. The duly elected
participants/members of the parliament have the sole authority to make laws and
the courts are only a forum that would interpret them and decide whether
someone is following it or deviating from it. The supporters of the concept of
"separation of powers" also argue along the same line by arguing that
the three organs of the state i.e. the Legislature, the Executives and the
Judiciary should operate individually and independently rather than stepping
onto the jurisdiction of the other organs of the state.
However on the other hand the people who have defended
judicial activism argue that it is the duty of the court and the court should
take upon itself to guarantee the rights of individuals against the powerful
hands of the few powerful people in the society. Laws that are inconsistent
with fundamental rights should be declared to be void with no effect no matter
how much loss the legislature has borne in introducing that illegal law. It is
the view of the supporters of the concept that it is also the job of the courts
to uphold the rights of the minority no matter what political pressures the
court faces in making that decision. The country has to be "socially
equal" in everyway to achieve full democracy. It cannot make double
standards as to its own policy making and the courts should be there to watch
that such double standards have not arisen between the general public and the
government.
Another critic of the concept is the present Chief Justice
of America, John Roberts who has condemned the concept of `judicial activism'
in the following words;
"Judges are like umpires. Umpires don't make the rules;
they apply them. The role of an umpire and a judge is critical. They make sure
everybody plays by the rules. But it is a limited role. Nobody ever went to a
ballgame to see the umpire."
Furthermore the Chief Justice has stated that `the courts
are not under a commission or mission to solve the society's problems'. The
courts in his view are only the adjudicators upon fact and law and they should
responsibly do only the duty of interpreting law.
An example of a U.S case that involved important judicial
activism is quoted as follows:
Dred Scott vs. Sandford[3]
This case also known as the "Dred
Scott Decision", was a lawsuit, pivotal in the history of the United
States, decided by the United States Supreme Court in 1857 that ruled that
people of African descent, whether or not they were slaves, could never be
citizens of the United States, and that Congress had no authority to prohibit
slavery in federal territories. The decision for the court was written by the
then Chief Justice of Amercia, Roger Taney. The
implications of the decision are not under discussion because the important
point to note here is that the Court took upon itself to lay down the law as
opposed to interpreting it which is the primary duty of the Judiciary.
Judicial Activism in
Judicial activism in
One of the various modes in which judicial activism is
practiced or is entrusted upon the courts to practice is through the concept of
"Public Interest Litigation" (hereinafter referred to as
"PLI"). The main appellate Court which is the court of last resort is
the Supreme Court of Pakistan. The Supreme Court has been involved in
historical problems which have frequently changed the level of judicial
activism in Pakistan but the soaring level at which it has been for the past
few years has never been witnessed before.
Pakistani courts have been involved in judicial activism since
a long time back and one of the examples of such activism can be witnessed from
the 1988, Saifullah's case. Despite the strong
pressure by the executives, it was made mandatory that elections would be held
on party basis. Later, the Lahore High Court and the Supreme Court both
declared that the government of "Junejo"
was dissolved unconstitutionally. The matter came down to an interpretation of
Article 17 of the Constitution and by taking a very dynamic interpretation of
Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the Supreme
Court interpreted the article literally, the case should have been heard by a
High Court at first instance.
Therefore it is evident that the Pakistani courts have been
involved in judicial activism since a long time back whether it is activism in
relation to political affairs or activism for the protection of individual
rights and the upholding of the rule of law.
The recent example of the "clash" between the
Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry and the President of Pakistan, can be attributed
to Judicial Activism in
Suo Moto:
The concept of suo moto (in the context of Pakistan) can be defined as an
inherent right of the Supreme Court and High Court of Pakistan to take
cognizance of any act/omission of any public functionary in order to check the
legality and more often, the legitimacy of any action of that public
functionary. Anything under the sun can come under the notice of the two Apex
courts of
In
Suo moto has
reached the status of an "inherent right" in
Conclusion
While concluding this discussion on Judicial Activism and Suo Moto, it is necessary to
evaluate the public perception of judicial activism in
One of the manifold reasons for the success of the concept
of Suo Moto is that it is
effortlessly accessible to the poor (which is the majority class in the
country) so for the poor and needy only a simple hand written
"letter" can initiate proceedings in the highest court of Pakistan.
The people who cannot even imagine affording the towering fees of big named
attorney's can simply request the CJP through a letter about any malpractice of
a governmental authority and the CJP (especially the ex-CJP) would be more than
willing to cure the defects by ordering the needful.
In this way suo moto action is a blessing for those who have been victimized
by the might of governmental authorities. Moreover another positive effect of
the suo moto action is that
the governmental authorities in order to save themselves the embarrassment of
being called inefficient or ultra vires through court try to restrain themselves into
doing acts which are within its legal sphere.
The new concept may be a violation of the rule of separation
of powers but the question then arises, do we actually need a concept such as
"separation of powers"? Is the legislature and executive doing
anything according to the rules of natural justice so that the citizens and the
organs (which are made up of the citizens themselves) are totally honest with
the country? Instead of making the situation worse, the judiciary is helping
the country in developing integrity and responsibility towards citizens,
guaranteeing the enforcement of their fundamental rights and constitutional
rights as promised in the Constitution of the Islamic Republic of Pakistan,
1973.
A developed country like the U.S which only requires checks
and balances for its smooth running can afford to apply and abide by such a
doctrine but where a country like Pakistan is being dictated by the military
for the past 10 years, it is better for someone to take upon him/her self the
responsibility of providing justice and who else is better equipped or legally
capable to provide justice other than a Judge of the Supreme Court of Pakistan?
The recent decision of the Supreme Court of Pakistan
regarding the holding of two posts simultaneously by the President i.e. the
posts of Chief of Army Staff and the President of Pakistan has taken the
general public by surprise (the Supreme Court has held with a majority of 6-
Is this decision a product of judicial activism as well or has
the government used its sticks against the judiciary to calm its activism down?
No matter what
explanations the Supreme
Court gives in
its detailed order, the language of Article 63 of
the Constitution of the Islamic Republic of Pakistan is clear and unambiguous. It
clearly lays down that a member of Majlis-e-Shoora
(the Parliament) cannot be a person who has been in the Civil Services of Pakistan
or has acted and worked in a post which is controlled or owned by the
government.
This decision can also be viewed as judicial activism by the
judges by ignoring the express prohibition in Article 63 of the Constitution of
the Islamic Republic of Pakistan but this time the judicial activism was in favour of one man at the expense of a nation built up of
millions of people.
A final verdict upon whether judicial activism is favorable
or not can be concluded in making a statement that such activism is favorable
for a third world country like Pakistan where justice and equality is not at
arms length for the poor. Judicial activism has helped societies all over the
world in developing their laws, however such activism should be checked and
balanced so that the judiciary does not become the legislature and the
interpreter of law. The role of the judiciary is to interpret the law as laid
down by the legislature and in doing so it should keep in mind the intention of
the legislature as well as the benefits and detriments of the final decision
upon the society. Last but not the least, the actions and activism of the
judiciary should replicate the needs of the society and any action taken on
behalf of the public should be for the benefit of the public as a whole as
opposed to the recent decision of the Supreme Court regarding the holding of
two posts simultaneously by the President, which is on the face of it tainted
with only one person's personal interests.