I have expressed my views about the Pakistan Supreme Court and its need to maintain judicial self restraint in articles published in this newspaper and elsewhere. However, in view of the turmoil currently prevailing in Pakistan, a clear elaborate enunciation of the philosophy of judicial restraint is called for.
In a recent statement, the Chief Justice has said that it is the Constitution, not Parliament, which is supreme in the country. There is no controversy about this legal position, and indeed that is the settled law since the historical decision of the US Supreme Court in Marbury vs. Madison (1803).
The grave problem, however, which courts are often faced with is this: on the one hand, there is no doubt that the Constitution is the supreme law of the land and prevails over statutes and executive decisions, and it is for the Courts to interpret the Constitution. On the other hand, in the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The solution to the problem was provided in the classical essay written in 1893 (and published in the Harvard Law Review the same year) by James Bradley Thayer, then professor of law of Harvard University, entitled “The Origin and Scope of the American Doctrine of Constitutional Law”. This essay elaborately discusses the doctrine of judicial restraint and explains why courts should follow it.
Justice Oliver Wendell Holmes, Louis Brandeis and Felix Frankfurter of the US Supreme Court were followers of Professor Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law” and in a lecture at Harvard Law School said:
“If I were to name one piece of writing on American Constitutional Law, I would pick Thayer’s once famous essay, because it is a great guide for Judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to Constitutional questions.”
The Court certainly has power to decide Constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 US 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self-restraint.
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution and the three organs of the State, the legislature, the executive, and the judiciary must respect each other and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically-elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.
Apart from the above, as pointed out by Professor Thayer, judicial overactivism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problem in the ordinary way, and correcting their own errors”.
In Asif Hameed vs. The State of Jammu & Kashmir, AIR 1989 SC 1899 (paragraphs 17 to 19 ) the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.”
As observed by Justice Frankfurter in Trop vs. Dulles (1958): “All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self-restraint. The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court’s giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit in judgment on the wisdom of what the legislative and executive branch may do.”
As observed by Justice AS Anand, former chief justice of India: “Courts have to function within the established parameters and Constitutional bounds. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Public adulation must not sway the judges. They must remember that they cannot run the government.”
Judicial restraint is particularly important for the Supreme Court for two reasons: 1) Of the three organs of the State, only one of them, the judiciary, is empowered to declare the limits of jurisdiction of all the three organs. This great power must, therefore, be exercised by the judiciary with the utmost humility and self restraint and 2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or executive then take over judicial functions? If the legislature or executive are not properly performing their functions, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because that would not only be against the separation of powers in the Constitution, but also because the judiciary has neither the expertise nor the resources to perform these functions.
The moral of this story is that if the judiciary does not maintain restraint and crosses its limits, there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society. It is not my opinion that a judge should never be an activist. Sometimes, judicial activism is a good and useful thing, such as in the school segregation and human rights cases decided by the US Supreme Court, e.g. Brown vs. Board of Education, Miranda vs. Arizona, Roe vs. Wade, etc or the decisions of the Indian Supreme Court expanding the scope of Articles 14 and 19 of the Indian Constitution. Such activism should, however, be done only in exceptional and rare cases.
Published in The Express Tribune, July 12th, 2012.
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Excellent arguments in favour judicial restrain. However, they are theoretical and philosophical and the writer has given little example where judicial activism has caused harm to the society. On the other hand in many democracies there are numerous examples where judicial restrains resulted in wastage and messing up of so many human lives. There are examples where human rights were being flouted by executive callousness and self serving priorities and judiciary looking the other way. It is still a question of what ifs? We will have to wait to and see how the current contest in Pakistan of judiciary vs. executives eventually turns out to be.
As a lawyer and a citizen I fully agree with the lucid, correct, superb oipnion of Justice Katju...Frankly speaking with all due respect I think our CJ has gone bonkers or crazy...He has committed so many violations of Constitution and principles of fundamental law. I'm not a PPP fan but for the sake of the country this judge should be removed and also investigated for extortion, corruption and abuse of judicial authority..
The recent comment by CJP that court impacted the British Parliament should be seen in context that Great Britain has no written constitution, the Crown is SUPREME and judiciary works along with Legislature and Executive for the crown. If for a moment we keep aside the military, Judiciary here should have a lower level role if we want to be a democracy! Since the Judiciary has no training or appreciation to be Gallop, should we not take statements by judges on what they perceive as desires and demands of people with a bit of reserve?
Is it not true that Legislature can ammend constitution, whereas, the judiciary can not?
The Justices, all 17 of them, need to resign from the Supreme Court. They all, without one exception, so often, have decided to ignore the obligation of a Supreme Court justice to be, and should appear to be, non partisan, apolitical. They all seem to be driven by political considerations and aspire being themselves politicians, which is contarray to their position and causing big problem for us and them and the system. My most sincere appeal is ---- please, go and do so without any delay.
Retired Justice Markandey Katju has quoted extensively on the judicial restain, but the problem with our Present Judiciary is that they are not well read. They had limited private practice so they decided to join Judiciary. They hardly know our own existing Laws. Like eg our judiciary never knew article 248. They also didn't know that Prime Minister is removed by the Parliment and not judiciary. Ch Sahib word of mouth has become a Law. Constitution is subservient to his lordship wishes.
Any one there to listen to Mr Katju or any rational voices in Pakistan. when I read the "Opinion" columns in Express Tribune and Dawn I am thoroughly impressed by the clear thinking, good advice of very mature writers. But Sir, in a country swinging on extremes on every matter from adulation to hate who will listen. The same people who were elected with unheard of majorities are now being abused day and night.
This is the third constitution in Pakistan. Off course peoples' representatives are always not right. For that amendments in constitution should be made difficult, with special majority. If one parliament commits mistake the next one will set that if people will ask for that. There are many ways. Still we feel that lots of inconsistencies are there, but the alternative of democracy in not available.
The discussion by Mr. Katju is not at all political and he gave so many references from the field under consideration, don't read what you have in your mind. The matter is of just Rs. 6 billion? 6 billions aren't more than the human lives of hazars and other killings by militants, Are 6 billion more than the corruption in judiciary from top to bottom. Are 6 billion more than the corruption in the Army, Police, Customs, Land revenue, Railways etc. These departments are being run by the bureaucracy and not the politicians. We should not vote for the corrupt leaders, we can do only this. our vote is our power. India has several cases like that, do read the history.
Judges are public servants not the public representatives
Sir, Thank you for opining that the Constitution is supreme over the Parliament. With the present Parliament in Pakistan, that can suddenly make major Constitutional amendments and sign them into law overnight, there is a need for more than judicial activism! This Parliament of corrupt 'Rubber Stamp' Members, only interested in their own benefits, cannot be supreme over the Constitution! Parliament must be speedily challenged if it passes any Unconstitutional Law. This Parliament can be expected to even pass, in one night, a Constitutional amendment to prolong their own tenures to 20 years! If the Supreme Court, exercises restraint, can't rule against such Parliamentary misadventures, and not try to prevent them, then we will only be left with another Unconstitutional process, a Coup, to kick out the worst government that Pakistan has ever suffered!!
I believe Pakistan people are reasonable and well meaning. It has contradictions and I believe will be resolved in time. It is an irony that democracy was not allowed for a long time. Political leadership carry lots of negativity. We easily see Its corrupt face, because it is accountable to us. Can we ask questions to military leadership? Isn't it the irony of a system that judiciary of Pakistan never questioned a military rule.It always validated them. We in India have corrupt leaders, we'll devise ways to set them right. It will take time. The role of military is to defend the country. Why did court allow military officers to appear in court over ruling civilian Government. The first job is to keep army under civil rule. If the humanity has to move forward please fight against poverty, illiteracy, gender bias, disease etc. A healthy, educated and well informed society will always take right decisions.
I would like to draw your attention toward current scenario in Gilgit Baltistan,supreme apeallet court is idle for last eleven months. justice delayed justice denied.
Issue is marred in what comes first; chicken or egg discussions. To a common mind, legislature framed the constitution and it has the right to amend it. In a parliamentary democracy (not ideal or perfect for Pakistan but accepted by all political parties) court’s interpretation should not be final and should be subject to parliamentary review and 2/3rd approval. Court cannot and should not decide what legislature can or cannot do except basic rights.
I dont see,there could be second opinions about Pakistan supreme court verdicts,however when you become over intersted in some of your cases,there is a problem.Although,current ppp led govt seems to be the worst thing to have happened for pakistan.by the way,great article.
I second the views of the author. But he forgets Pakistan being Pakistan, it has different rules. Here anybody who has the 'authority' uses it against democracy. How many civilian governments have been dismissed in Pakistan? I think all of them. It is either the President, GHQ or CJ who dismisses them. Even if we agree that some of the actors in politics were inefficient, why are others hanging on for ever until death takes them away? So in this country the law of the jungle applies. Except in a jungle the fight is between one animal of different or weaker powers. In Pakistan opposition joins hands with anti democratic elements also, although they will be next in line for dismissal.
Mr Katju, for the sake of whatever god you believe in, don't drag yourselves too deeply into something that is a little different from what you are used to in India. It is not the same constitution. It is not the same cultural context. It is not the same political terrain. You wrote two articles. Made your point. People have read them and have understood them. After this, you continue only with considerable risk to your own reputation. Practice restraint.
This Restrain Doesn't Apply on Our Politically Motivated Judges.
* judicial overactivism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problem in the ordinary way, and correcting their own errors”.* * If the legislature or executive are not properly performing their functions, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because that would not only be against the separation of powers in the Constitution, but also because the judiciary has neither the expertise nor the resources to perform these functions.* GREAT ARTICLE. Will CJP ever read this?
The real issue is democracy. People can punish or reward a Government and can push the legislatures to do their job, but whom the judiciary and Armed Forces are responsible in Pakistan? For a long time military is the real executive in the country, without accountability. In some of the media debates I follow in YouTube people express their loyalty to military in the name of defense. Now it is not the time of wars. No one takeover a nation, if people are aware and strong. But they can be mislead. Sure it is a transition period, people have to devise ways to create a greater awareness. For that a more open system of communication is required. Sometimes majority becomes autocratic, so the voice of few is also very important. One must strive to create a well informed, participatory and reasonable democracy.The most important thing is that the term democracy is not important, it is the value of the word which matters. People are first, but they should be better informed and free to express their views.
@Mirza: "In Pakistan a Jihad is being waged against minorities, smaller sects of Muslims, women, liberal, secular and democratically elected govt"
I smiled as I read this. It is obvious that you are dismayed that 'jihad' is being carried out against minorities, smaller Islamic sects, secular people, liberals etc. Yet for a large proportion of your compatriots, jihad is a desirable thing and this message is reinforced starting from school.
What the honourable Judge(ex) is saying, is in essences, that justice is just one pillar of democracy not a substitute for it.
A very balanced point of view.
Establishment always needs a sword hanging on elected government. Now that 52-b is gone,thanks to Zardari and sharif, judiciary has taken over the role of. I saq Kahn and farooq Lighari.
Justice is absolutely right. But his opinion matters only in a society ruled by law. Pakistan's Supereme law is not constitution but law of necessity.
Thank you respected retired judge Katju for another excelent article. I hope our hyper active judiciary will learn from others kind opinion. It is important for the success of democrcy in pakistan. Live with love-Let democracy work
what special qualification do the judges have to interpret the constitution after all they have studied law for a mere two years the law should be changed to make a parliamentary committee comprising of all political parties with presentation in national assembly Law makers can understand the law better. There is need for reality check and not judical poetry and khyali ghode
Dear Justice sb, I fail to understand why a person of your stature eyed this case with politcal lens. The Pakistani judges are not embarking on an adventerous journey unlike the Egyptian ones. The matter is of six billion Pakistani rupees. The judges want that public money to come back; it's a matter of public money. What do you think the courts should do? Now when it has been established in our country that the powerful is not above law, why do you expect the honorable Court not to pursue this? This case, for any matter, does not involve a complex hodgepodge of legalities. If such a dispute arises in your country, what would you like as a citizen? Should the respectable judges tie themselves up under the garb of self-restraint and fail to take any step against Manmohan Singh when he's adamant on not allowing graft charges to be investigated against Sonia Gandhi?
@elementary: "Desperate times call for desperate measures"
Isn't that what the army always said to justify its overreach?
Excellent analysis. If only Pakistani Judges could have the long term wisdom you have so ably shown. The unfortunate reality is that the same arm-chair, non-voting critics of civilian governments who used to encourage military dictators are all too happy to encourage judicial ones. And the PCO CJ loves it. However imperfect, democracy must prevail for it is the best long term solution to Pakistans problems.
A great Op Ed by a real legal Titan with lots of authentic references from the best name in the field. However, this is not going to be of any use if one does not want to listen at all. In Pakistan a Jihad is being waged against minorities, smaller sects of Muslims, women, liberal, secular and democratically elected govt. A glaring example is the legal fraternity which showered roses on convicted murderer Qadri and LHC CJ volunteered his free legal help without asking. OBL's namaz janaza was performed by the lawyer’s community. The efforts are to kick out the secular coalition and the only options are rightwing forces including generals. We are still angry that how Americans found OBL sitting pretty in our army base and leaving no stone unturned to punish all possible liberals who might have helped the Americans including HH. I am not a member of any of the ruling parties but in this war with the extremists one has to choose lesser of the two evils.
Great piece, but the problem with the Pakistan Supreme Court is that it is partisan. The way our society is over politicized, the same way our SC is. The SC by all means has a political agenda which is reflected in their judicial practices and that is in demonizing the civilian rule in general and a specific political party in particular.
What a mess this becoming...Pakistani supreme count judges, lawyers, political parties DPC NSAs TTP were not enough and along comes Justice Katju from next door. Is this a jamboree or what? And who is suffering - the common people of Pakistan.
Asking for judicial restraint to a judge restored with judicial activism which later evolved into hyper activism seems possible but very difficult. Sir, in your opinion what should a chief judge do when he/she becomes a controversial figure and loses public respect to a great extent?
Totally agree judicial activism should be done in exceptional circumstances and what we see happening here can be seen as exactly that. Sir, with your vast experience kindly gives us your views on the workings and responsibilities of the other two pillars of the Pakistani state.
Desperate times call for desperate measures.
It seems Pakistan's simplified problem is the people aren't taking up the responsibility of their role and the Supreme Court is playing the part of the spoiling but over protective parent, not giving any thought to how the way they're raising them may be detrimental in the real world.
Retired Justice Markandey Katju is ever an optimist.