THE INVISIBLE FACE OF JUDICIAL ACTIVISM: EXECUTIVE DISCRETION, ADMINISTRATIVE REVIEW, AND THE EXPANSION OF JUDICIAL POWER IN PAKISTAN

Abstract

Judicial activism is generally associated with constitutional conflicts, suo motu actions and the conflict between constitution and elected governments in Pakistan. This paper looks at a more obscure aspect of judicial activism the enlargement of judicial authority under the guise of challenging executive discretion and administrative action. The research design employed was a qualitative doctrinal and critical study which involved the analysis of the constitutional provisions, judicial decisions, constitutional amendments and scholarly works on judicial review, administrative discretion, reasonableness, proportionality and separation of powers. The results reveal that Pakistani courts have been increasingly addressing administrative issues beyond the mere issue of jurisdiction and legality to the questions of reasonableness, procedural fairness, proportionality and fundamental rights. This enhancement to accountability and safeguard of citizens against arbitrary executive acts would make possible, however, a danger of judicial overreach if the judiciary accepts its own policy choices in place of those of constitutionally mandated executive institutions. The findings of the study also reveal that the recent constitutional restructuring does not have the effect of the abolition or removal of judicial power in Pakistan, rather it has been shifted to another chamber of the Federal Constitutional Court which has been established and the constitutional jurisdiction of the Supreme Court has also been changed. It is concluded that Pakistan should have robust and disciplined judicial review that is able to limit the unconstitutional exercise of executive authority while upholding the rule of law and administrative autonomy. The study thus recommends that Pakistan urgently needs to have a strong, yet disciplined judicial review that can check the violation of the Constitution of the Islamic Republic of Pakistan by the executive without compromising on the administrative autonomy and accountability.