Judicial Activism vs. Judicial Restraint in Pakistan: A Constitutional Analysis of Post-18th Amendment Jurisprudence

Abstract

The present paper discusses the constitutional issue between judicial activism and judicial restraint in Pakistan during the post-Eighteenth Constitutional Amendment (2010) era. It claims that the period of the post-amendment has made the judicial system more active in the state of governance and constitutional interpretation due to the fact that the Amendment itself reconstructed the institutional power by strengthening the parliament and providing more freedom to provinces and revised the judicial appointments and, at the same time, enforced the normative strength of the rights and democratic commitments. The paper examines superior court jurisprudence of the post-2010 period, in terms of its negotiation of the public interest litigation, suo moto jurisdiction, accountability-oriented adjudication, election-related matters, federalism issues, as well as the question of the reviewability of constitutional amendments. The main argument is that the post-18th Amendment jurisprudence of Pakistan exhibits a patterned oscillation: in times of perceived institutional failure, political crisis or a rights abuse the courts swing to the left of the spectrum; in times where judicial legitimacy, institutional balance or the continuity of democracies is perceived to be endangered by judicial overreach the courts swing to the right of the spectrum. As it is analyzed, both activism and restraint are not automatically virtuous since it is the constitutional problem to formulate principled limitations of judicial intervention that avoids democratic erosion and power division without jeopardizing constitutional preeminence and fundamental rights. The paper has concluded that a steady balance involves clarity of dogma, procedural changes and the enhancement of political and administrative accountability structure in order that the courts are not turned into the singular contesting setting of everyday governance arguments.