JUDICIAL ACTIVISM
Outline:
1. Introduction 2. Judicial Activism vs. Judicial Restraint 3. Origin and Historical Fruition of Judicial Activism
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Marbury vs. Madison Case Dred Scott vs. Sandford Case Plessy v Ferguson Case Theories of Judicial Activism Theory of Vacuum Filing Theory of Social Want Judicial Activism in Pakistan 1) Historical Background Moulvi Tameez ud Din, Dosso and Nusrat Bhutto Cases Judges Case Legal Reforms Ordinance 2) Current Scenario Legal Status of Judicial Activism in Pakistan a) Principle of Tri-chotomy' and Theory of Vacuum Filing b) Suo Moto Notices U/A. 184 (3) c) Judicial Review Power d) Custodian of constitution is apex court e) Supreme Court is guardian of Fundamental Rights of people f) Precedents from Globe e.g. USA and India Factors That Triggered Judicial Activism in Pakistan 1) Mal Performance of Executive and Legislature o Punjab Bank Scam o NICL scam o Hajj corruption o Ephedrine scam o Sugar Crisis 2) Failures of Legislature and Executive to Deliver the Goods o NRO o 17th Amendment o Ambiguity in Laws o Inhuman Treatment in jails o Cases of Missing Persons 3) Inactive and Ineffective System o Corruption o Redtapism o Foreign Interference and Influence in Domestic Affairs
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JUDICIAL ACTIVISM
INTRODUCTION
In every democratic country, legislature, executive and judiciary are seen as the three most important units which play a vital role in the administration of the country. Same can be observed in the democratic setup of Pakistan in which all the functions of the state are divided into three parts: making of laws, execution of laws and to do justice. These three functions are performed by three organs which are called Legislature, Executive and Judiciary. Legislative, executive and judicial powers are distributed among different organs of government and each organ exercises them separately and independently. Though there should be close harmony between the various departments but none should have total autonomy. Each departments authority should be checked by other department so that none can find opportunity to misuse its powers. Among all these organs, judiciary is the component responsible for the resolution of disputes regarding law and order of the country. Every country irrespective of the form of government prevalent there has its own judiciary. Hence it is the branch which is supposed to be totally impartial and apolitical. However, sometimes, the laws of a country are written in such a way that they may be open to interpretation in different ways. In cases when a law is interpreted in a wrong way, the role of judges and courts as the custodians of justice becomes important. This aspect, in recent times, has given rise to the dual concepts of judicial activism and judicial restraint.
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CONCLUSION
Judicial activism if used by judges who are loyal with their work can act as one of the most powerful tools for Pakistans judiciary system. Lot of high profile cases like conviction of Yousuf Gillani and cognizance of different cases i.e. missing persons, NRO, Hajj Corription etc. is taken because of judicial activism. But if the judges are not loyal and are corrupt then it can also results in ruling which surpasses all logics because as Justice J.S.Sharma of India has referred: Judicial activism is a sharpedged tool which has to be used as a scalpel by a skilful surgeon to cure the malady. Not as a Rampuri knife which can kill. Though, it is for the benefit of each and everybody without any distinction whatsoever. Our Legislature and Executive have failed to wipe out tears from the eyes of the general public: they have given smiles to a few only but judicial activism had made smiles all pervasive. The support of the people is making judicial activism strong all the more. Judicial activism is a good thing and every good thing is opposed tooth and nail because it hurts the vested interests of a few mighty and powerful. Harsh and exemplary action taken by the Apex Court against the so called high and mighty for their wrong doings has made the henchmen of the affected high-ups start a tirade against the Apex Court. They openly say that the Court has trespassed its jurisdiction and has put on the mantle of the Executive. They argue that judiciary cant be panacea for all evils. They are conveying a wrong impression that the Court has undermined the prestige of the Legislature and the Executive. This is being done only to misguide people. The founding fathers of our Constitution were wise enough to give the sword of judicial review in the hands of the judiciary to keep the other wings of the government on the right track and to check them if they go astray. This is what the Apex Court is doing today. Judicial activism has enhanced the prestige of judiciary because it has lizoled our corrupt and foul smelling system to some extent and it has strengthened the belief and trust of the people in democracy. But this era of judicial activism is a temporary one. In our democracy the legislative, the executive the judiciary and the media have their mutually reinforcing roles which cannot be urged by a single authority.
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