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1 Introduction
In the summer of 2012, the Prime Minister of Pakistan, Yusuf Raza Gilani, was unilaterally and retroactively disqualified from his democratically elected post by the Supreme Court of Pakistan.1 This disqualification was considered by critics as a unnerving and abrupt end to the dream of judicial independence promised by the Lawyers’ Movement which rose to prominence in 2007, under the leadership of Chief Justice Iftikhar Chaudhry.2 That movement deposed a military ruler and helped usher in the re-establishment of democratic rule in Pakistan.3 Yet afterwards, the Court began escalating a confrontational relationship with the ruling regime, which was under the leadership of the Pakistan’s People’s Party (PPP). Critics accused the Court of judicial bias against the PPP and of applying judicial review without any structural limits, thereby interfering with the work of Parliament and the Prime Minister. These critiques were met with the defense that the Court was properly using its judicial review powers to punish rampant political corruption and apply the rule of law to the political elites of the country – actions that until now were unprecedented.4
While the Court has somewhat relaxed its use of power and informally adopted a policy of judicial restraint since Chaudhry’s retirement in 2013,5 it took an equally confrontational approach with the PPP’s successor administration, run by Pakistan Muslim Leave (Nawaz) (PML-N). This has led to the Court repeating its decision from Gilani by disqualifying Prime Minister Nawaz Sharif for allegations of corruption in 2017,6 which has reinvigorated public interest in the proper role of the judiciary in the process of executive disqualification. There is a structural issue underlying this case, as well as other manifestations of judicial overreach by Pakistan’s Supreme Court over the last decade: the Supreme Court has yet to adopt a self-limiting standard of justiciability7 or a procedure to assess the justiciability of petitions before granting oral hearings. Without a case-selection process or standard, the Court may continue to take action on petitions that wrongfully invoke judicial remedies for purely political issues.
I. Chaudhry court
Chief Justice Chaudhry led what some have described as the most interventionist Court in Pakistan’s history.8 The Supreme Court under Chaudhry’s leadership was accused of abusing judicial review power9 by invoking it without limitations and exacerbating the caseload of the already-overworked Court.10 One can see that the Court’s overuse of judicial review was evident in the matter of executive disqualification.
However, it is important to remember that while the Supreme Court under Chief Justice Chaudhry’s leadership was the most active in its history, the evolution of judicial review began several decades ago and has been impacted by the historical and socio-political context of a country facing extreme poverty, illiteracy, political instability, and inability of minorities to gain access to forums of justice like the Supreme Court.
II. Global growth of judicial review
The hyper-active quality of the Chaudhry Court is an extreme example of a world-wide trend of the ‘judicialization of politics’ recognized by Ran Hirschl, who explains that
over the past few years the world has witnessed an astonishingly rapid transition to what may be called juristocracy. Around the globe, in more than eighty countries … constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries.11
This “global trend toward juristocracy” is based on the principle that “democracy must protect itself against the tyranny of majority rule through constitutionalization and judicial review.”12 Accordingly, “judicial empowerment through the constitutionalization of rights and the establishment of judicial review appear to be [the] widely accepted conventional wisdom of contemporary constitutional thought.”13 The global trend towards judicialization of politics can disturb the balance of power between branches in a tripartite system. Yet, this trend can be attributed to “multiple institutional, political, and judicial behavioral factors,” including “the existence of tangible rights, an enabling constitutional framework, and an independent judiciary with an activist outlook[, which] are widely accepted as vital prerequisites for judicial involvement in the political domain.”14
This runs counter to the argument put forth by Professor James B. Thayer in his seminal law review article from 1893 entitled The Origin and Scope of the American Doctrine of Constitutional Law.15 In this work, Thayer describes that while the creation of judicial review was novel at the time of America’s independence, its usage was minimized by the Supreme Court, which strictly adhered to the separation of powers enumerated in the Constitution and rejected improper or non-justiciable petitions.16
However, a global trend has emerged in the opposite direction of Thayer’s assertion of judicial restraint in the context of the nineteenth-century United States, and the Pakistani Supreme Court, led by Chief Justice Chaudhry, became known as the “most activist court in the region’s history.”17 The hyper-active tendency of the Chaudhry Court has implications for “our understanding of the phenomenon of judicialization of politics” around the world.18 Despite the relevance of such activism by courts for the global study of judicial review, “American scholarship on constitutional law and politics still tends to ignore comparable developments in other countries.”19 This study addresses this gap by comparing the United States Supreme Court’s restrained use of judicial review to the more activist court in Pakistan and, to a lesser degree, India. While justices on the Supreme Courts of India and Pakistan cite jurisprudence from the United States Supreme Court, these citations often ignore the contextual and structural differences between the nations and their respective common law. The same goes for legal scholars in the region, many of whom reject American principles of judicial restraint without contextualizing the varying degrees of judicial power guaranteed in the constitutions of the United States, Pakistan, and India.
This study uses Pakistan as the centerpiece of its analysis with India and the United States as comparative points of reference. The aim is to contextualize the use of judicial review dating back to the colonial period in each country and propose a method for the Supreme Court of Pakistan to institutionalize limitations to its use of judicial review.
III. Defining activism
The term judicial activism was introduced in 1947 to describe the split in ideologies on the United States Supreme Court at the time,20 with one group of justices arguing in favor of “judicial activism” as a means “to achieve social justice” and another arguing in favor of judicial restraint as a means of allowing elected officials the right to pursue policies “that a majority [of voters] might wish.”21 Nearly six decades later, there is still great disagreement about what “judicial activism” actually means, and a definitive definition becomes more elusive when moving beyond the analysis of one country’s Supreme Court to comparing the jurisprudence of three Supreme Courts with very different histories.
Nevertheless, scholars have attempted to define judicial activism in the following ways:22
- i “the Court’s willingness to invalidate statutes”23
- ii “departing from text and or history or judicial precedent”24
- iii “significant court-generated change in public policy”25
- iv “asserting itself against an elected branch of government; it is decreeing that some issue will not be settled through the democratic process”26
- v “the abuse of unsupervised power that is exercised outside the bounds of judicial role”27 which may or may not be “to promote progressive ideologies of individual rights.”28
While there is not one definition, some of these explanations focus on the difference between activist judges who “believe that it is legitimate for them to formulate social policy,” as opposed to self-restraining judges who “would confine the judiciary to the task of applying to specific cases laws and regulations made by the so-called ‘political branches’ of government.”29 The focus of this debate is therefore “the proper relationship between the courts, on one hand, and the legislature and administration, on the other.”30
Another element of this issue revolves around the political ideologies which might guide the Court; as one jurist notes,
advocates of judicial activism tend to regard it as progressive judicial conduct responding to changing economic, political, and social circumstances, while critics of judicial activism tend to characterize it as judicial impropriety usurping the power of the other branches of government.31
The advocates for judicial activism in Pakistan and India have used this line of argument to justify their Supreme Courts’ expanded use of judicial review and as a means to push elected officials towards politically progressive policies that help the poor or disenfranchised citizens.
However, as described by Herman Schwartz, judicial activism in the United States Supreme Court has often been used to implement a politically conservative ideology that is friendlier towards corporations and the protection of private property than the needs of the ‘...
