Blog. JUDGES & POLITICS: Rise and Fall of Judicial Activism

The Judges and Politics Blog analyzes the interaction and relationship of the judiciary and judges with political institutions and actors.

Maryam S. Khan
In a recent study of Public Interest Litigation (PIL) and its nexus with judicialization of politics, I present an extensive empirical analysis of PIL jurisprudence in the Supreme Court of Pakistan. The analysis is based on a combination of quantitative and qualitative data collated from a study of all 218 reported PIL judgments of the Supreme Court over a 25-year period – from 1988 (in many ways, the year of PIL’s systematic emergence in Pakistan) to 2013 (the end of the erstwhile Chief Justice Iftikhar Chaudhry’s term in office). I divide PIL into chronological periods or “phases of judicialization” according to changes in political conditions. The objective of this periodization is to foreground the political choices of the Supreme Court in relation to both larger power struggles and the shifting positions of other political institutions, actors, and interest group mobilizations. The periodized study clearly shows that there are alternating periods of judicial activism on the one hand, and judicial retreat from political questions on the other. I refer to the former as “waves” and to the latter as “troughs.” On the basis of a combined evaluation of the qualitative and quantitative data, the study identifies three waves of judicial activism punctuated by two troughs signifying judicial retreat. These waves and troughs are further sub-divided into distinct phases that represent important milestones within each wave or trough. Here is a snapshot of this scheme:

First Wave of PIL Activism

Phase 1, 1988-1993
Except for the distinction attached to the two seminal cases of Benazir Bhutto v. Federation of Pakistan—regarding the freedom of association of a leading political figure—and Darshan Masih v. State—regarding the life and liberty of bonded laborers—PIL had gradual and modest beginnings.

Phase 2, 1993-1997
This was a turning point for PIL. In many ways, this phase represents the apotheosis of PIL‘s jurisprudential development and innovation. It was also the phase during which PIL acquired a determinedly political character.

Judicial Retreat

Phase 3, 1998-2000
With the expulsion of Chief Justice Sajjad Ali Shah in late 1997, the Supreme Court showed visible signs of retreat in its PIL activism.

Phase 4, 2000-2005
With the military takeover of government in a coup in late 1999, the purged Supreme Court used PIL to legitimize General Musharraf’s regime. This is not to say that the court withdrew from intervention in political questions. To the contrary, the court adjudicated some of the most politically charged questions through PIL during this phase, but the proportion of unconstitutional rulings was at its lowest ever.

Second Phase of PIL Activism

Phase 5, 2005-2007
Having survived through a critical phase of constitutional deviation, the court tried to restore its legitimacy and regenerate public confidence in its professed capacity to deliver justice to the common man. The court began with governance and policy questions of relatively low political salience, slowly building up its tempo and raising the stakes as it gained more visible publicity and support.

Phase 6, 2007
The identification of PIL with the chief justice‘s reinstatement—in other words, the move from PIL as a mere instrument to an embodiment of judicial independence and power—marks a distinct phase in its evolution.

Judicial Retreat

Phase 7, 2007-2009
With Musharraf’s second emergency and the consequent removal of a large majority of the incumbent judges, the court went into active retreat.

Third Wave of PIL Activism

Phase 8, 2009-2013
In March 2009, Iftikhar Chaudhry was reinstated, for the second time, to the chief justiceship of the Supreme Court. With the unqualified ascendance of the Supreme Court over the government in combination with the popular political and social legitimacy on which it firmly rested, the court hoped to exercise its powers in an unrestrained and expansive manner. The most striking statistic of PIL activism in Phase 8 is the sheer quantity of reported Supreme Court judgments under its original jurisdiction. The court adjudicated nearly as many reported cases in Phase Eight as it did prior to it.

Here are some schematic representations of the waves and troughs of PIL-based judicialization that map trends in the frequency and proportion of “unconstitutional rulings” (broadly defined as rulings that declare executive action or legislation unconstitutional) over time.

Figure Six shows the relative frequency of reported rulings according to three general categories: (1) constitutional—those that uphold the constitutionality of executive action or challenged legislation; (2) unconstitutional—those that declare executive action or legislation unconstitutional, including interim orders, rolling reviews, and declaratory or directory cases that indicate a clear posture of the court toward a ruling of unconstitutionality; and (3) other—cases that have been admitted or registered for hearing, are at an initial inquiry stage, are interim judgments, or are limited to setting out guidelines, but in which the court reserves its opinion on the merits.

Figure Seven indicates the ratio of reported unconstitutional to constitutional rulings in different periods. It is interesting that in the first wave of judicial activism (Phases 1 and 2), the ratio of unconstitutional rulings vis-à-vis constitutional rulings was roughly 1:1, whereas in the second (Phases 5 and 6) and third waves (Phase 8), the ratio increased to 5.5:1. Clearly, judicial activism in the first wave was much more balanced and restrained than in the subsequent waves.

Figure Eight is a line graph representation of the data in Figure Seven. It brings into sharp focus the alternating waves and troughs signifying the waxing and waning of judicial power based on the percentage of unconstitutional rulings in PIL cases.

Source: Maryam S. Khan, Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization, 28 Temp. Int’l & Comp. L. J. 284 (2015).