The judicial structure in Pakistan traces its origins back to the British colonial period, where it was established along modern lines. Before British rule, the state had minimal influence on the daily lives of village communities in pre-British India, who were largely autonomous and governed their affairs through primitive institutions. It was only during British rule that initial efforts were made to enhance the state's role in organizing social life. Dispute resolution and contract enforcement became state responsibilities, represented by the police, courts, and the administrative apparatus.
After independence, Pakistan passed the Objective Resolution, which promised judicial independence and some separation from the executive, though this separation remained unachieved for many decades. Until 1996, Article 200(1) of the Constitution gave the president authority to transfer a judge from one High Court to another. Clause 4 of the same article stated that judges who refused such transfers would be considered retired. Additionally, Clause 5 of Article 203C and Clause 4B of Article 203-C conflicted with Article 209(7), which provided constitutional protection to justices in Pakistan's superior courts. Article 180 required the president to appoint a senior Supreme Court judge as acting Chief Justice whenever the position was vacant. This provision was heavily manipulated by General Zia, who appointed acting Chief Justices for extended periods, keeping them under the constant threat of removal. The difference in retirement ages between High Court Judges (62 years) and Supreme Court Judges (65) further pressured High Court Judges to favor the executive to secure a chance of being appointed to the Supreme Court.
As a result, judicial appointments in Pakistan have often been among the most insecure. The subservience of the judiciary to powerful state players, such as the bureaucracy and later the military, began with the 1954 judgment by Justice Munir, who invoked the 'doctrine of necessity,' which states that what is otherwise unlawful is made lawful by necessity.
The newly established Constituent Assembly was tasked with forming a constitution and running the government. However, the Governor-General, acting under the Indian Independence Act of 1947, dissolved the Constituent Assembly even as the constitution neared completion. The President of the Constituent Assembly filed two petitions under Section 223-A of the Indian Independence Act in the Sindh Chief Court against the Governor-General's dissolution of the assembly. The Sindh Chief Court ruled against the Governor-General, but the Governor-General appealed to the Federal Court. The Federal Court focused not on the Governor-General's authority to dissolve the assembly but on the constitutionality of Section 223-A, which had not been approved by the Governor-General, thus nullifying the Sindh Chief Court's jurisdiction. Later analysis revealed that Justice Munir could not distinguish between the Federal Legislature and Constituent Assembly tasks. He relied entirely on Jennings' arguments, which did not address the Governor-General's powers but instead questioned the Chief Court's jurisdiction. Justice Cornelius dissented, noting that Justice Munir followed English law maxims that were inapplicable in Pakistan post-independence. Justice Munir's decision, which contradicted Quaid-e-Azam's vision of a sovereign Constituent Assembly, is considered an instance of intellectual corruption in Pakistan's constitutional history.
This decision nullified 43 Acts of Parliament with a single stroke, as they had not received the Governor-General's approval. To resolve the constitutional crisis, a reference was filed, and the dissolution of the Constituent Assembly was legitimized under the doctrine of necessity, and the 1955 Emergency Powers Ordinance was validated.
The first constitution of Pakistan, adopted in 1956, replaced the Governor-General with a ceremonial President. However, in 1958, President Mirza declared martial law but was replaced by General Ayub within a month, marking Pakistan's first military regime. The Supreme Court employed similar tactics in the Dosso Case, where it overruled the Lahore High Court's decision, limiting courts' jurisdiction and restricting their ability to issue writs for fundamental rights violations. This decision not only legitimized martial law but also undermined democratic norms by curtailing courts' writ jurisdiction, further encouraging military interference. Had Justice Munir not chosen to appease the government in these cases, Pakistan's judicial history might have taken a different, more positive trajectory.
During Ayub's era, judges were appointed on a political basis throughout his presidency. His era ended with his resignation, and power was transferred to General Yahya. General Yahya held the first election under public pressure. The Awami League won a clear majority across Pakistan, while Z.A. Bhutto won the majority of seats in West Pakistan. However, General Yahya delayed forming the government and launched an offensive operation in East Pakistan, leading to its separation after a few months. Following this, General Yahya was forced to resign, and Z.A. Bhutto assumed power, later becoming Prime Minister after the adoption of the 1973 Constitution.
After completing its tenure, the PPP government held elections in 1976, which were alleged to be rigged, sparking widespread protests by opposition parties. While the government negotiated with opposition parties, General Zia-ul-Haq launched Operation Fair Play to seize power. During this era, judicial independence reached its lowest point.
In the famous Asma Jilani case of 1972, Chief Justice Hamood ur Rehman disagreed with the Dosso case and ruled in favor of Asma Jilani, who sought relief through a writ of habeas corpus for her father. However, in 1977, the Law Order was promulgated, the Constitution was suspended, and the writ jurisdiction of the Supreme Court and High Courts was curtailed, along with the suspension of fundamental rights.
Another significant blow to judicial independence came in the case of Begum Nusrat Bhutto. She filed a writ petition in the Supreme Court challenging the legitimacy of the regime and seeking the release of her husband, Zulfiqar Ali Bhutto. Despite the Constitution being suspended, not abrogated, Chief Justice Yaqoob Ali Khan admitted the petition and ordered Mr. Bhutto's transfer from Lahore to Rawalpindi. The military regime, displeased with this decision, removed Chief Justice Yaqoob Ali Khan. His successor, Chief Justice Anwar Ul Haq, invoked the doctrine of necessity, citing previous judgments, and added that while martial law was unconstitutional, the armed forces had to act to save the country from further chaos.
The judgments of Anwar Ul Haq further empowered General Zia to amend the Constitution. General K. M. Arif, a close confidant of General Zia, later revealed in his book a meeting between Sharee-ud-Din Pirzada (Zia’s Attorney-General) and Chief Justice Anwar-ul-Haq, where the Chief Justice informed Pirzada that the court had decided to validate the imposition of martial law. When Pirzada inquired about the power to amend the Constitution, the Chief Justice replied that it had not been granted. Pirzada then suggested that a new Chief Justice would be needed who would agree to grant this power. This conversation reportedly took place a day before the judgment was announced. According to Judge Patel, in response, Chief Justice Anwar-ul-Haq inserted the power to amend the Constitution by hand after the original judgment had been signed by all judges.
This illustrates how the judiciary submitted to the military. The trial of Z.A. Bhutto is yet another example of judicial compromise. The Zia regime charged Bhutto with orchestrating the killing of a political opponent, Nawab Ahmed Khan Kasuri, in March 1974. However, Bhutto was initially released by Justice K. M. A. Samadani, who found the evidence against him inconsistent and incomplete. This led to Justice Samadani's removal from the bench, and Bhutto was re-arrested on the same charges. On March 18, 1978, a five-member bench of the Lahore High Court, headed by Maulvi Mushtaq Hussain, sentenced Bhutto to death in a split decision. This trial was widely regarded as a 'mock trial' conducted in a 'kangaroo court' by foreign observers. An appeal was filed in the Supreme Court, where most judges were initially reluctant to uphold the High Court's decision. However, the court adjourned until July 1978, when one of the reluctant judges was due to retire. Eventually, on February 6, 1979, the Supreme Court issued a guilty verdict and upheld the sentence by a narrow 4-to-3 majority. Bhutto was hanged on April 4, 1979. Justice Dorab Patel later revealed that executive pressure influenced the decision in Bhutto's appeal. Stanley Wolpert noted that General Zia believed Bhutto had to be executed to eliminate any future threats.
During Zia's regime, Chief Justices of High Courts were regularly appointed as Governors, mixing the executive with the judiciary, as governors held significant power under martial law. General Zia's death in a plane crash on August 17, 1988, ended military rule. However, Zia had made the constitution semi-presidential through amendments, including the infamous Article 58(2)(b), which gave the President the power to dismiss the assembly.
After elections, Benazir Bhutto was elected Prime Minister, and Ghulam Ishaq Khan, a senior bureaucrat close to the military, assumed the office of President. A power struggle ensued between the President and the Prime Minister. Eventually, Khan dismissed Benazir Bhutto's government on charges of corruption in November 1990. This cycle repeated when President Ghulam Ishaq Khan moved to dismiss Prime Minister Nawaz Sharif. However, Nawaz Sharif appealed to the Supreme Court, which, under Chief Justice Nasim Hassan Shah, ruled in his favor, declaring that the President could only dissolve parliament if a constitutional breakdown had occurred, and that incompetence or corruption of the government were not valid reasons for dismissal. However, under pressure from the armed forces, both Sharif and Khan agreed to resign in July 1993.
In October 1993, Benazir Bhutto returned to power and appointed Mr. Leghari as President. During her second term, she had a tense relationship with the military, even surviving an attempted coup by a group of army officers, including a major-general. In November 1996, President Leghari invoked the infamous Clause 58/2 B to dismiss Benazir Bhutto's government, despite being her ally, on corruption charges. This decision was challenged in the Supreme Court, which upheld the dismissal by a 6-to-1 majority.
Nawaz Sharif won the 1997 elections with a two-thirds majority, enabling him to amend the Constitution. One of his first actions was to strip the President of the power to dismiss an elected government and parliament. A conflict arose between Prime Minister Nawaz Sharif and Chief Justice Sajjad Ali Shah, who was critical of some of the amendments Sharif was making to the Constitution. Justice Shah initiated contempt of court proceedings against Sharif, which escalated on November 30, 1997, when several Cabinet ministers and a large number of Sharif’s supporters stormed the Supreme Court. Justice Shah attempted to strike down the 13th Amendment and restore the President’s right to dismiss the government. He also sought military assistance to remove Sharif, but the military refused. Ultimately, both President Leghari and Justice Shah were ousted by Nawaz Sharif.
The relationship between Nawaz Sharif and the military deteriorated, culminating in General Musharraf assuming the title of Chief Executive. The Constitution was suspended, and a Provisional Constitution Order (PCO) was promulgated, which restricted the writ jurisdiction of the Superior Courts. Judges were required to take a fresh oath under the PCO; Chief Justice Saeeduzzaman Siddiqui and five other Supreme Court judges refused and were subsequently discharged. Those who took the oath were retained, with Justice Irshad Hasan Khan becoming the Chief Justice.
The reconstituted Supreme Court took up a petition by Syed Zafar Ali Shah, a member of the deposed parliament, challenging the legality of General Musharraf’s actions on October 12. A twelve-judge bench heard the case and ruled that Musharraf’s actions were valid under the "doctrine of state necessity."
The Musharraf era later became significant for the judiciary, which entered a new phase of judicial activism and the post-Lawyers Movement era. However, the judiciary's long history of yielding to executive and military pressure has left deep scars on Pakistan's legal and political landscape.
~Sharjeel Hakim
Batch'28
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