Judicial Review and Democratic Institutions in Pakistan: Navigating Extra-Constitutional Measures and Judicial Activism

Abstract

The judiciary in Pakistan has played a pivotal role in shaping the country’s constitutional and democratic evolution. While the judiciary holds a significant position in promoting democratization, it has often been criticized for endorsing extra-constitutional measures, legitimizing military interventions, and reinforcing authoritarian regimes at the cost of democratic institutions, its own independence, and public trust. This paper analyzes key historical judgments, categorizing the judiciary’s role into those that facilitated democratic progress and those that impeded it. It also explores the judiciary’s stance towards various state institutions and political parties, emphasizing instances where it favored one institution or political group over another, often to the detriment of democratic balance. The paper provides evidence explaining the persistent necessity of judicial intervention, particularly in response to emerging forms of corruption that spread rapidly and compel the judiciary to act to prevent state failure and maintain national viability. It further examines how judicial activism and the frequent use of suo motu powers by superior courts are diminishing the operational space of the executive, a development that runs counter to the functionalist interpretation of the separation of powers and the system of checks and balances. The final section discusses how the dual-edged role of the judiciary can be regulated to ensure the effective functioning of other branches of the state while remaining within its core mandate of reviewing governmental actions for constitutional compliance.