JUDICIAL ACTIVISM AND ACCOUNTABILITY: A COMPARATIVE ANALYSIS ON SUPREME COURT OF PAKISTAN AND UNITED STATES

ABSTRACT

This article critically examines the judicial activism practiced by the Supreme Court of Pakistan and draws a comparison with the United States jurisdiction. This paper provides general overview and explores various aspects of judicial activism followed by its scope under Suo moto powers, public interest litigation, and judicial review. It further delves into the case studies and modern jurisprudence in order to explore how the apex courts of both the states are involved in shaping public policy. Furthermore, it provides a comprehensive analysis of its implications on the doctrine of separation of power by reason of judicial intervention, as well as, the potential overreach. The next portion of study thoroughly examines the Twenty Sixth Amendment of the Constitution of Pakistan in the light of judicial activism with special reference placed upon the curtailment of Suo moto powers under the proviso of Article 184(3) of the Constitution. It further delves into the U.S. model of judicial self-restraint and offers insights how this approach can regulate judicial activism and dilemma of judicial overreach.

Introduction:

The concept of judicial activism has generated a lot of discussion and attention, especially in areas where judges have rendered important decisions on pressing matters having significant impact on public at large. However, there is no unified definition of judicial activism and for that reason this concept has been interpreted differently in different dimensions. Judicial Activism has taken on diverse forms in the contexts of Pakistan and the USA, each reflecting the distinct legal, political, and social prospects of both states.

On one hand, the judicial activism is considered as essential element for promoting justice, defending human rights, and regulating the departments of legislative and executive by keeping checks on these branches. On the other hand, this activism gives rise to apprehension that the court is overstepping its boundaries and interfering with the functions of the other organs namely Executive and Legislature.

This article will serve a comparison of the concept of judicial activism under the perspective of both Pakistan and USA and delves into the intricate relationship between judicial activism and judicial self-restraint.

Thesis Statement:

There is a lack of defined parameters concerning judicial accountability for addressing the judicial activism in Pakistan which results in unregulated adjudication of laws and create hinderance in Supreme Court’s authority to address pressing legal issues effectively, therefore judicial interpretation of Suo moto powers exercised by Supreme Court of Pakistan in juxtaposition with USA Judicial legal framework, the effect of 26^th Constitutional Amendment analysed.

Research Methodology:

This research is doctrinal legal research, and the research methodology used to collect data is qualitative. The research methods used are comparative, analytical, and descriptive. It compares the concept of judicial activism between the USA and Pakistan. Research relies on primary sources such as statutes, case laws, and journals, as well as secondary sources including scholarly articles, legal journals, commentaries, and law commission reports from both jurisdictions.

Overview of Judicial Activism:

The judiciary plays a significant role as a pivotal organ of the government. This organ serves as the foundation for upholding the rule of law as well as it takes up the role of a guardian of the constitution which is the supreme law of the land. The judicial organ is responsible for ensuring and upholding justice, interpretation of statutes, keeping up a check and balance on the other two organs of the government i-e legislature and executive. However, when Judges resort to their political and personal reasoning in their ruling rather than their honest interpretation on the law in question and, therefore perceived to be exceeding its role and consequently shaping the policy outcomes leads to a phenomenon of judicial activism.

Such proactive role of courts goes beyond the conventional role that is restricted only to the extent of application of enacted laws by courts due to the reason that the proactive role of the judiciary leads to broader and sometimes progressive interpretation of law for upholding rights and liberties of individuals, addressing the perceived societal prejudices as well as to bring accountability in respect of governmental institutions. However, this proactive role is also followed by some repercussions as this process can lead to judicial overreach and consequently misuse of power by the judicial organ. Conferring the excessive authority to this organ usually results in the overstepping of its judicial bounds and interfering in the separation of power and consequently compromising the democratic principles.

1.1 In Pakistan:

Pakistan has been exposed to judicial activism in the process of adjudicating for fundamental rights and freedom of the citizens, for invoking accountability of the governmental institutions through judicial review, nevertheless it has not been done without some extent of exploitation and misapplication of such power.

The judicial activism in Pakistan covers the aspects of principle of judicial review, Suo-moto powers of the Supreme Court, public interest litigation mainly. The traces of judicial activism can be found in the Molvi Tamizuddin Case (1955)[1] where Chief Justice of Pakistan (CJP) at that time, Muhammad Munir, upheld the act of dissolving the Constituent Assembly by the Governor General Ghulam Muhammad as lawful and valid.[2] Justice A.R. Cornelius, in his dissenting remarks, referred the Constituent Assembly as sovereign body which is not subjected to the assent of the Governor General. The Federal Court made the abrogation of the constitution lawful by placing it under the ‘doctrine of necessity’. Such proactive approach was labelled as ‘activist approach’.

1.2 In United States:

The term ‘judicial activism, at the very outset, lacked a precise definition and hence encompasses a broad range of notions and concepts. This term was advanced by Arthur Schlesinger Jr. in an article titled as “The Supreme Court:1947” published in Fortune Magazine in January, 1947. In the said article, Arthur Schlesinger has categorized the nine justices of the US Supreme Court at the time and placed them in the category of judicial activists or labelled them as proponents of judicial self-restraint.

Judicial activism was initially recognised in U.S. and its legal foundation can be traced back to the landmark ruling by Chief Justice John Marshall of the US Supreme Court in Marbury v. Madison (1803)[3]. This case affirms that the constitution is the supreme law of the land and it has also established the doctrine of ‘Judicial Review’ i-e the act passed by the Congress was declared to be unconstitutional. The significance of this case relies on the fact that it has been followed as a precedent in every case or controversy involving conflict between the any legislative action and the Constitution.

Constitutional Provisions and Relevant Statutes:

The legal foundation of judicial activism in Pakistan, the Supreme Court exercises the power of judicial review as well as Suo Moto actions under the ambit of article 184 (3) of the Constitution. Furthermore, the provision of Article 8 highlights the scope of judicial review.

The provision of Section 2, Article 3 of the U.S. Constitution provides the framework for the machinery of the Supreme Court and the judges have also derived their power to exercise judicial review from this provision.[4] This article further implies that the Supreme Court can only adjudicate upon the cases and controversies brought before it.

Scope of Judicial Activism in Pakistan:

The practice of judicial activism by the judges differs in the jurisdiction of Pakistan and United States.

1.1 Suo Moto:

The term ‘Suo Moto’ is a Latin term having literal interpretation as ‘on its own motion’. Suo Moto refers to any action taken by a judicial authority for taking cognizance of a matter on its own motion without having any formal request of the concerned parties to the suit. As the Suo moto action has been formally recognized through the interpretation of the provision of Article 184 (3) of the Constitution of the Pakistan 1973, this concept is totally absent within the judicial organ of the United States, specifically US Supreme Court.

1.2 Public Interest Litigation:

PIL can be traced back to the Darshan Masih v. The State (1990)[5]. The cognizance of the matter was taken upon receiving of a telegram message concerning bonded labor (also known as Brick Kiln Labor) directly violating constitutional rights. Bonded labor was ruled to be outlawed and unlawful as it falls in contradiction with the Constitutional freedoms. With the passage of time, these Suo Moto actions were expanded unnecessarily and paved way for the judicial overreach.

1.3 Judicial Review:

This constitutionally driven power is vested with the Supreme Court to determine the constitutionality of any law, or any administrative action or, any formulated amendment. Judicial review laid its foundation in cases such as Maulvi Tameezuddin case (1955)[6] and Dosso Case (1958)[7].

Scope of Judicial Activism in United States:

The practice pertaining to judicial activism differs in U.S. Supreme Court.

1.1 Judicial Review:

The judges only exercise the power of judicial review and due to its conventional usage, it is also called as ‘constitutional review’.  The Supreme Court recently issued a ruling in Moore v. United States (2024)[8] in which Court reviewed the power of the Congress to tax the income generated through unrealized gains. The issue was analysed under the 16th Amendment and it was upheld the Congress has the constitutional authority to impose tax on such income.

1.2 Public Interest Litigation:

The foundation of public interest litigation was established in U.S. largely due to the case of Gideon v. Wainwright[9]. Gideon wrote directly to the U.S. Supreme Court when Florida’s courts denied him legal representation for him being too impoverished to pay for a council. The Supreme Court upheld that granting legal assistance to underprivileged people is crucial to guaranteeing justice for everybody which laid the basis for the growth of public interest litigation.

Analysis under the Context of Twenty-Sixth Constitutional Amendment:

The series of amendments were proposed in a bill which has taken its shape into Constitution (Twenty-Sixth Amendment) Act, 2024.[10] This Act has brought a large number of judicial reforms and significant structural changes in the higher forums of judiciary. The most noteworthy among all is the changes introduced in the procedure for appointment of CJP, the term of the CJP, removal of Suo-moto powers of the Supreme Court, formation of Constitutional Benches of the Supreme Court and High Court, performance evaluation of the High Court Judges, incorporation of fundamental right to clean and healthy environment etc.

It is worthy to highlight that the Twenty-Sixth amendment removed the Suo moto powers retained by the Supreme Court by adding a proviso to Article 184 (3) of the Constitution.[11] The proponents of this amendment contend that these judicial reforms are necessary to curtail judicial activism as well as judicial overreach by the judicial members of the Supreme Court and limiting judicial intervention in the matters of political importance. This argument has been put forward in reference to the activistic approach adopted by the judges in the era of the Justice Iftikhar Chaudhry and Justice Saqib Nisar. The abrupt removal of Suo moto powers has also been criticised by the critics as it has become the tool for manipulation of the superior judiciary in the hands of the government and the legislative branch mainly.

Politicization of Judiciary:

Through Twenty-Sixth Amendment, Clause 3 of the Article 175-A has amended the procedure for appointment of CJP i-e upon the recommendations from the Special Parliamentary Committee. The Special Parliamentary Committee shall be comprised of twelve members, eight members from the National Assembly and four members from the Senate.[12] Such constitution of the Committee can be analysed under the context that the judiciary is being politicised as the appointment of the most senior judicial members will be done mainly by the legislature. It is important to notice that there is a possibility that the decisions of the judicial officers concerning matters of political importance will be highly influenced by such members of the Parliament. This procedure was conveniently used to sideline the upcoming candidate for the office of CJP, the eligible candidate as per the previous pattern of selection. It was later proved to be true when Justice Yahya Afridi was appointed as the Chief Justice of the Supreme Court.

Criticism and Controversies:

The International Commission of Jurists (ICJ) gave remarks on the enactment of the said amendment by observing that major structural and institutional changes have been made within the judiciary and labelled the enactment as a blow to judicial independence and rule of law.[13] The passage of Twenty Sixth Amendment Bill from the Parliament within the time frame of less than 24 hours leads to further concerns revolving around the possibility of ulterior motives on the part of the government. Special Rapporteur in its report analysed the implications of the Amendment as per the international standards set by International Covenant on Civil and Political Rights (ICCPR) and stressed upon providing the judicial independence at institutional level as well as individual level.[14]

Comparative Study with U.S. Framework:

The historical aspects make it evident that the judiciary has repeatedly intervened in the administrative actions of the executive branch as well as legislative domains, therefore, has received criticism for exercising judicial activism resulting in judicial overreach and promoting institutional tensions. There is no concept of Suo moto actions in U.S. judicial system. It only deals with cases and controversies brought before it by the aggrieved persons or entities. The Supreme Court actively participates in interpretation of statutes and also issues judgement having far-reaching implications however it is done with regard to consideration given to the domains of legislative and executive domains. The strong system of checks and balances effectively curtails the judicial overreach by the U.S. judiciary. The 2024 World Justice Project rule of law index has ranked Pakistan in 129th out of 142 countries worldwide. Whereas, U.S. fall on 26th position in ranking under WJP index.[15]

Accountability Mechanism for Addressing Judicial Activism:

Pakistan’s judicial system does not provide a strong mechanism for ensuring accountability for superior judiciary. It results in judicial authority go unchecked, hence, leaving room for judicial intervention and judicial overreach. Originally, the Supreme Judicial Council (SJC) regulates accountability of judges within the ambit of misconduct. To add further, the Twenty-Sixth Amendment has introduced performance evaluations of the High Court judges on annual basis to be conducted by the Judicial Commission of Pakistan (JCP) under clause 18 and 19 of the Article 175-A of the Constitution. Although, it is a step forward for improving accountability mechanism, nonetheless, the same evaluation does not extend to the judges of the Supreme Court. In contrast, the U.S. judicial framework has excessive scrutiny over nomination and appointment of judges of the Supreme Court. The legislative branch keeps check on the judiciary by way of impeachment of the judges on the ground of misconduct, which is done by Congress. In this way, it regulates the judicial branch from undergoing unnecessary judicial overreach and activism.

U.S. Model of Judicial Self Restraint:

The concept of judicial self-restraint, also acknowledged as a passive virtue among the scholars of the modern era, is an effective tool to address the challenges concerning judicial activism.[16] Such restraint is essential in drawing boundaries and self imposition of limitation on the exercise of judicial autonomy. Justice Benjamin N. Cardozo also backed the approach of judicial restraint.[17] To add on, James Bradley Thayer in his essay, published in Harvard Law Review, also suggested the courts to follow the doctrine of judicial self-restraint.[18] Under U.S. jurisdiction, the Supreme Court has imposed two significant constraints on its judicial autonomy which includes the requirement of legal dispute or controversy between the contesting parties, and other constraint is followed by the doctrine of justiciability.[19] This doctrine employs responsibility on the Supreme Court to determine whether the cases or controversies qualify for adjudication.[20]

In view of the above, it is provided that these constraints proved to be valuable in regulating judicial activism. Similar approach should be adopted in the Pakistan by the judiciary in their individual as well as institutional capacity. It is suggested to maintain a balance between judicial independence and imposing of self-constraints. The judicial self-restraint strategy can uphold the doctrine of separation of powers contributing to the strong democratic governance within the Pakistan 

CONCLUSION:

The judicial activism has been found to be a double-edged sword as it is proved to be essential tool to guard constitutional rights and freedoms, side by side, it poses risks of judicial intervention among other branches of the government which can disrupt the balance of power and governance.

The comparative inquiry into Pakistani and U.S. judicial practices reveals the intricate balance between judicial authority, constitutional mandates, and democratic governance. Going forward, both jurisdictions may benefit from constitutional reforms, clearer procedural guidelines, and a more nuanced understanding of scope of judicial activism. In this way, the courts can solidify their role as impartial arbiters and guardians of constitutional democracy.

Recommendations:

This research article advocates for several judicial and constitutional reforms needed for effective regulation of judicial activism. The proposed reforms are enlisted below:

1. An independent oversight body should be established to monitor judicial conduct for enhancing accountability mechanism.
2. The appointment procedure for judges must be made more transparent to eliminate the apprehensions pertaining to the perceived political influences and biases of the judges. Furthermore, the performance evaluation strategy, as introduced for High Court judges under Twenty-Sixth Amendment, should also be introduced for Supreme Court judges in order to perform more diligently.
3. To address concerns about judicial activism in Pakistan, several reforms inspired by the U.S. judicial framework can be adopted. The U.S. model of judicial self restraint must be adopted in order to regulate the systemic issues concerning judicial activism.

BIBLIOGRAPHY

Primary Sources:

1. Statutes:

Constitution of the Islamic Republic of Pakistan 1973

Constitution of the United States (1787)

Constitution (Twenty-sixth Amendment) Act, 2024

International Covenant on Civil and Political Rights ICCPR (1976)

2. Case Laws:

Darshan Masih v. The State [1990] PLD SC (513)

Flast v. Cohen [1968], 392 U.S. 83, 95.

Gideon v. Wainwright [1963] 372 U.S. (335)

Marbury v. Madison. [1803] 5 U.S. (1 Cranch) 137

Moulvi Tameezuddin v. Federation of Pakistan [1955] PLD FC (240)

The State v. Dosso [1958] PLD SC (533)

Secondary Sources:

1. Articles:

• Communication report and search ohchr.org [2024] Mandate of the Special Rapporteur on the independence of judges and lawyers. Available at:< https://spcommreports.ohchr.org/> (Accessed: 23 September 2025).
• Dawood, J. M. “The role superior judiciary in politics of Pakistan. Karachi book company. Federation of Pakistan vs Moulvi Tamizuddin khan, F.C. 240 (Federal Court PLD 1955).” [1994]
• Ayub Ali, “Judicial activism vis-à-vis judicial restraint imperative for delivering justice: A comparative analysis” [2014]. Available at: <https://www.researchgate.net/publication/335380749_Judicial_Activism_vis-a-vis_Judicial_Restraint_Imperative_for_Delivering_Justice_A_Comparative_Analysis >(Accessed: 23 September 2025).
• Muhammad Shahid. The myth and reality of Judicial Activism., Journal of Int’L Affairs, Vol 4, Issue 4 [2021]. Available at: <https://www.pjia.com.pk/index.php/pjia/article/download/374/261> (Accessed: 23 September 2025).
• Overview of rules of justiciability and cases or controversies requirement | constitution annotated | congress.gov | library of Congress. Available at: <https://constitution.congress.gov/browse/essay/artIII-S2-C1-3-1/ALDE_00001193/ > (Accessed: 23 September 2025).
• Programme, A.& the P. (2024) Pakistan: 26th Constitutional Amendment is a blow to the independence of the judiciary: ICJ, International Commission of Jurists. Available at: <https://www.icj.org/pakistan-26th-constitutional-amendment-is-a-blow-to-the-independence-of-the-judiciary/> (Accessed: 23 September 2025).
• S. Senate: Constitution of the United States < https://senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm > (Accessed: 23 September 2025).

2. Books:

• Lindquist, S and B. Cross, F. [2009] ‘Measuring Judicial Activism’

3. Journals:

• Harvard Law Review. Vol VII. ‘The origin and scope of the American doctrine.’ [1893] Available at: <https://www.jstor.org/stable/pdf/1322284.pdf > (Accessed: 23 September 2025).

4. Newspaper:

• BBC News, ‘Panama Papers: Pakistan PM Nawaz Sharif to Face Investigators’ (BBC News21 April 2016) <https://www.bbc.com/news/world-asia-36092356> (Accessed: 23 September 2025).
• com “What is the 26th constitutional amendment?” [2024] Available at: <https://www.dawn.com/news/1866480> (Accessed: 23 September 2025).

5. Reports:

• WJP rule of law index (2024). World Justice Project. Available at: <https://worldjusticeproject.org/rule-of-law-index/?gad_source=1&gclid=CjwKCAiA9bq6BhAKEiwAH6bqoIxhAuluXncCJu3ubHUeoBy8_ctBGF7-YiAE-5LGXwlTU5zPGKqfDhoCCYMQAvD_BwE > (Accessed: 23 September 2025).

[1] Moulvi Tamizuddin v. Federation of Pakistan [PLD 1955 FC 240].

[2] Dawood, J. M. (1994). The role superior judiciary in politics of Pakistan. Karachi book company. Federation of Pakistan vs Moulvi Tamizuddin khan, F.C. 240 (Federal Court PLD 1955).

[3] Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).

[4] U.S. Senate: Constitution of the United States < https://senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm > (Accessed: 23 September 2025).

[5] Darshan Masih v. The State [PLD 1990 SC 513]

[6] Moulvi Tameezuddin v. Federation of Pakistan [PLD 1955 FC 240]

[7] State v. Dosso [PLD 1958 SC 533]

[8] Moore v. United States [2024] 602 U.S. (572)

[9] Gideon v. Wainwright [1963] 372 U.S. 335

[10] Constitution (Twenty-sixth Amendment) Act, 2024.

[11] Dawn.com “What is the 26th constitutional amendment?” [2024] Available at: <https://www.dawn.com/news/1866480> (Accessed: 23 September 2025).

[12] Supra note 12

[13] Programme, A.& the P. (2024) Pakistan: 26th Constitutional Amendment is a blow to the independence of the judiciary: ICJ, International Commission of Jurists. Available at: <https://www.icj.org/pakistan-26th-constitutional-amendment-is-a-blow-to-the-independence-of-the-judiciary/> (Accessed: 23 September 2025).

[14] Communication report and search ohchr.org (2024) Mandate of the Special Rapporteur on the independence of judges and lawyers. Available at:< https://spcommreports.ohchr.org/> (Accessed: 23 September 2025).

[15] WJP rule of law index (2024). World Justice Project. Available at: https://worldjusticeproject.org/rule-of-law-index/?gad_source=1&gclid=CjwKCAiA9bq6BhAKEiwAH6bqoIxhAuluXncCJu3ubHUeoBy8_ctBGF7-YiAE-5LGXwlTU5zPGKqfDhoCCYMQAvD_BwE (Accessed: 23 September 2025).

[16] Md. Ayub Ali, “Judicial activism vis-à-vis judicial restraint imperative for delivering justice: A comparative analysis” [2014]. Available at: <https://www.researchgate.net/publication/335380749_Judicial_Activism_vis-a-vis_Judicial_Restraint_Imperative_for_Delivering_Justice_A_Comparative_Analysis> (Accessed: 23 September 2025).

[17] Muhammad Shahid. The myth and reality of Judicial Activism., Pak. Journal of Int’L Affairs, Vol 4, Issue 4 [2021]. Available at: <https://www.pjia.com.pk/index.php/pjia/article/download/374/261> (Accessed: 23 September 2025).

[18] Harvard Law Review. Vol VII. The origin and scope of the American doctrine. [1893] Available at: <https://www.jstor.org/stable/pdf/1322284.pdf > (Accessed: 23 September 2025).

[19] Overview of rules of justiciability and cases or controversies requirement | constitution annotated | congress.gov | library of Congress. Available at: <https://constitution.congress.gov/browse/essay/artIII-S2-C1-3-1/ALDE_00001193/ > (Accessed: 23 September 2025).

[20] Flast v. Cohen [1968], 392 U.S. 83, 95.