Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization
Published - Feb 23, 2015Amongst other things, this work presents a periodized study of Public Interest Litigation (PIL) in Pakistan based on an extensive qualitative and quantitative review of all 218 reported judgments of the Supreme Court in its original jurisdiction over a 25-year period (1988 to 2013). The qualitative analysis aims to provide a wide range of metrics for gauging shifts in PIL jurisprudence, the nexus of these shifts with judicial strategy, and the overall trends in judicial activism—and retreat—over time. The quantitative analysis is juxtaposed with the qualitative analysis to: (1) chart changes in the frequency and proportion of unconstitutional rulings (broadly defined as rulings that declare executive action or legislation unconstitutional); (2) observe the differential make up of litigants; and (3) examine the evolution of types of issues adjudicated over time. On the basis of a combined evaluation of the qualitative and quantitative data, the study identifies and divides PIL into three “waves” of judicial activism punctuated by two “troughs” signifying judicial retreat. These waves and troughs are further sub-divided into distinct phases that represent milestones within each wave or trough. The periodized study also introduces into the PIL discourse new analytical categories for identifying and enumerating different types of PIL cases as well as for gauging the relative importance and currency of each type of PIL over time. These categories include: Typical PIL, Political PIL, Class Action PIL, and High Court Writ PIL. A central conclusion of the PIL study is that despite the many changes that PIL has undergone in the quarter-century of its existence, it continues to evolve on a continuum that is remarkably unchanging in terms of the structural relationship between the judiciary and civilian-democratic politics. This is because of cyclical military interventions that have stunted, even hijacked, democratic transition and, in the process, used the constitutional courts for the twin purposes of legitimation of de facto government and de-legitimation of civilian politics.
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Khan, M. S. (2015). Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward a Dynamic Theory of Judicialization. Temple Journal of International & Comparative Law.