Q. No. 3. The growing judicial activism in Pakistan is clearly at the expanse of parliamentary 2019-I

1.Role of Judiciary in Pakistan

In Pakistan, the judiciary plays a critical role in interpreting and upholding the rule of law, ensuring the protection of fundamental rights, and maintaining the balance of power among different branches of government. The judiciary in Pakistan is composed of a hierarchical system, with the Supreme Court at the apex, followed by high courts in each province, and subordinate courts at the district and lower levels.

The judiciary’s primary function is to adjudicate disputes and interpret laws, including the constitution, statutes, and common law principles. It serves as the ultimate arbiter of legal disputes, providing a forum for the resolution of conflicts between individuals, government entities, and private organizations. Through its decisions, the judiciary establishes legal precedents that guide future cases and shape the development of the legal system.

Moreover, the judiciary in Pakistan has a crucial role in safeguarding fundamental rights and liberties guaranteed by the constitution. It acts as a guardian of the rule of law, ensuring that government actions comply with constitutional norms and do not infringe upon the rights of citizens. The judiciary has the authority to strike down laws or executive actions that are found to be unconstitutional, thereby serving as a check on the power of the legislative and executive branches.

Additionally, the judiciary in Pakistan has been increasingly assertive in recent years, engaging in judicial activism to address issues of public importance and human rights violations. Through public interest litigation and suo moto actions, the courts have intervened in matters such as environmental protection, corruption, and access to justice, often taking a proactive approach to ensure accountability and transparency in governance.

However, the role of the judiciary in Pakistan has also faced criticism, particularly regarding issues of judicial overreach and delay in dispensing justice. Critics argue that judicial activism, while well-intentioned, can sometimes encroach upon the authority of elected representatives and disrupt the balance of power between different branches of government. Despite these challenges, the judiciary remains a crucial institution in Pakistan’s democratic framework, tasked with upholding the rule of law and protecting the rights and freedoms of all citizens.

2.Principles of Parliamentary Sovereignty and Supremacy

The principles of parliamentary sovereignty and supremacy are foundational concepts in democratic systems of governance, emphasizing the authority of the legislature as the supreme law-making body within a nation-state. These principles have deep historical roots and serve as key pillars of constitutional governance in many countries, including the United Kingdom and its former colonies.

1. Parliamentary Sovereignty: Parliamentary sovereignty asserts that the legislative body, typically referred to as Parliament, has the ultimate legal authority to make, amend, or repeal laws within its jurisdiction. This means that Parliament’s enactments are binding and cannot be overridden by any other institution or authority within the state. In practical terms, parliamentary sovereignty implies that there are no legal constraints on Parliament’s legislative powers, and it can enact laws on any subject it chooses.
2. Supremacy of Law: The principle of parliamentary supremacy emphasizes that the laws enacted by Parliament are the highest form of law within the legal system. This principle stands in contrast to the idea of constitutional supremacy, where a written constitution serves as the highest legal authority. In systems with parliamentary supremacy, such as the United Kingdom, Parliament’s legislative acts take precedence over all other sources of law, including common law principles and judicial decisions.
3. Absence of Legal Limitations: Under parliamentary sovereignty, there are no legal limitations on Parliament’s authority to legislate. Unlike in systems with constitutional supremacy, where courts have the power of judicial review to strike down laws that violate the constitution, parliamentary sovereignty grants Parliament unchecked legislative power. While there may be political or practical constraints on Parliament’s authority, such as public opinion or international obligations, there are no legal mechanisms to invalidate or challenge its enactments.
4. Evolutionary Nature: The principles of parliamentary sovereignty and supremacy are not static concepts but rather evolve over time in response to changing political, social, and legal dynamics. In practice, the scope and exercise of parliamentary authority may be influenced by factors such as shifts in public opinion, changes in government composition, or developments in international law.

In summary, parliamentary sovereignty and supremacy represent the core principles of legislative authority in democratic systems, affirming Parliament’s role as the primary law-making institution within the state and emphasizing the primacy of legislative enactments in the legal order.

3.Definition and Implications of Judicial Activism

Judicial activism refers to a proactive approach taken by judges in interpreting laws and the constitution, often involving decisions that go beyond merely applying existing legal precedents or deferring to legislative or executive actions. Instead, judicial activists are more inclined to assertively interpret the law to address perceived social injustices, protect individual rights, or advance specific policy objectives. This approach contrasts with judicial restraint, where judges limit themselves to strictly interpreting laws and deferring to the other branches of government.

One implication of judicial activism is its potential to reshape legal and social norms. Activist judges may use their positions to challenge established legal doctrines, push for social change, or protect marginalized groups. For example, in landmark cases such as Brown v. Board of Education in the United States, judicial activism played a crucial role in ending racial segregation in public schools by overturning the “separate but equal” doctrine.

Furthermore, judicial activism can lead to increased accountability and transparency in governance. By actively scrutinizing government actions and laws, activist judges serve as a check on the power of the legislative and executive branches. This can help ensure that government actions are consistent with constitutional principles and respect fundamental rights.

However, judicial activism also has its critics and potential drawbacks. One concern is that activist judges may overstep their bounds and infringe upon the authority of the elected branches of government. Critics argue that decisions made through judicial activism may lack democratic legitimacy since judges are not directly accountable to the electorate.

Moreover, judicial activism can lead to political polarization and controversy, particularly when judges intervene in highly contentious social or political issues. Activist decisions may provoke backlash from opponents who view the judiciary as encroaching on the democratic process or imposing personal ideologies.

Overall, while judicial activism can serve as a powerful tool for promoting justice and equality, it also raises important questions about the proper role of the judiciary in a democratic society. Striking the right balance between judicial activism and restraint is essential for maintaining the rule of law and preserving the integrity of democratic institutions.

4.Critique of Judicial Activism’s Impact on Parliamentary Authority

Critiquing the impact of judicial activism on parliamentary authority involves examining how the assertive role of the judiciary may encroach upon the legislative powers and functions of elected representatives. Here’s an analysis of the potential criticisms:

1. Undermining Democratic Accountability: Critics argue that judicial activism undermines democratic accountability by allowing unelected judges to make policy decisions that should be the prerogative of elected lawmakers. When judges intervene in matters of public policy, they may be perceived as substituting their own preferences for those of elected representatives, thereby circumventing the democratic process.
2. Interference with Legislative Discretion: Judicial activism can limit the discretion of legislatures to enact laws and policies that reflect the will of the electorate. When courts strike down or modify legislative measures based on their own interpretation of constitutional principles or human rights, they may be perceived as unduly restricting the authority of elected representatives to address complex social issues through legislation.
3. Undermining Legislative Deliberation: Critics argue that judicial activism can stifle legislative deliberation by preempting or bypassing the democratic process of debate, negotiation, and compromise that occurs within legislative bodies. Instead of allowing elected representatives to weigh competing interests and values, activist judges may impose their own solutions to societal problems, potentially curtailing the development of nuanced and comprehensive legislative responses.
4. Creating Uncertainty and Instability: Judicial activism can create uncertainty and instability in the legal and policy landscape by subjecting legislative decisions to judicial review and potential reversal. When courts invalidate laws or policies enacted by legislatures, it can disrupt existing legal frameworks and undermine public confidence in the legislative process.
5. Exceeding Judicial Competence: Some critics argue that judicial activism reflects an overreach of judicial authority into areas traditionally reserved for the political branches of government. Judges, they argue, lack the democratic mandate, expertise, and accountability to make complex policy decisions that require input from elected representatives and consideration of competing societal interests.

In summary, while judicial activism can serve as a check on legislative overreach and a protector of fundamental rights, its impact on parliamentary authority is subject to critique. Balancing the principles of judicial review with respect for democratic accountability and the separation of powers is essential for ensuring effective governance and the protection of constitutional principles.

5.Constitutional Checks and Balances in Pakistan

In Pakistan, constitutional checks and balances are fundamental mechanisms designed to prevent the abuse of power and maintain the separation of powers among the executive, legislative, and judicial branches of government. These checks and balances are enshrined in the Constitution of Pakistan, which establishes the framework for governance and delineates the respective powers and functions of each branch.

1. Legislative Branch (Parliament): The Parliament of Pakistan consists of two houses: the National Assembly (lower house) and the Senate (upper house). Parliament is responsible for making laws, approving the budget, and exercising oversight over the executive branch. It serves as a check on the executive through mechanisms such as parliamentary debates, question sessions, and the power to pass votes of no confidence.
2. Executive Branch: The executive branch is headed by the Prime Minister, who is elected by the National Assembly. The President of Pakistan, while largely a ceremonial figure, has certain constitutional powers, including the authority to appoint the Prime Minister and dissolve the National Assembly. The executive is subject to oversight by Parliament, and its actions are subject to judicial review by the courts.
3. Judicial Branch: The judiciary in Pakistan is independent and plays a crucial role in upholding the rule of law and protecting constitutional rights. The Supreme Court of Pakistan is the highest judicial authority and has the power of judicial review to ensure that laws and executive actions comply with the constitution. The judiciary serves as a check on both the executive and legislative branches by striking down unconstitutional laws and actions.
4. Federalism: Pakistan is a federal republic with a system of provincial governments that have their own legislative assemblies and executive branches. This division of powers between the federal and provincial levels serves as an additional check on centralized authority, ensuring that decision-making is decentralized and responsive to regional needs and interests.

Overall, the constitutional checks and balances in Pakistan are intended to prevent the concentration of power in any single branch of government and promote accountability, transparency, and the rule of law. While these mechanisms are crucial for democratic governance, their effectiveness depends on the commitment of political actors to uphold constitutional principles and respect the separation of powers.