ABSTRACT
One of the remarkable features of Pakistan’s present transition to democracy is the emergence of an independent higher judiciary. In March 2007, for the first time in history and in a rare show of defiance of the military establishment, former Chief Justice of the Supreme Court Iftikhar Muhammad Chaudhry declined General Musharraf ’s candidature for a second presidential term. This unprecedented act unleashed an eventful process that has catapulted the judiciary into Pakistan’s political power structures as an important stakeholder. It has subsequently emerged as a key defender of democratic system, rule of law, transparency in governance and corruption-free politics – and constantly challenged both the military and political elites, albeit with limitations. However, judicial activism is yet to make any visible impact on the functional efficiency of lower courts. Moreover, the independence of the higher judiciary may itself have been potentially constrained by the establishment of military courts in January 2015 to deal with terrorist cases, even though only for a limited period of two years. This chapter begins with a brief history of the role the higher judiciary has played in scuttling democracy in Pakistan. It then elaborates the circumstances that paved the way for judicial activism. Subsequent discussion covers in detail the crucial role that the higher judiciary and legal fraternity have played in sustaining the current democratic transition. The study concludes by underlining the key challenges and prospects of judicial activism, and what they entail for the future of democracy.
