The judiciary, as one of the three primary pillars of governance, holds an indispensable position in the constitutional and political framework of any nation. In Pakistan, its role has been far from trivial. Over the decades, the judiciary has navigated the tumultuous political landscape, offering judicial intervention at critical junctures to safeguard the integrity of the constitution and, by extension, the future of the country. For example, the judiciary's proactive stance during constitutional crises has repeatedly prevented complete political breakdowns. While political instability and challenges in governance have often marred Pakistan's history, the judiciary’s ability to preserve the constitutional order has been a steady force, though not without controversy.
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When one speaks of the judiciary in Pakistan, it is important to acknowledge that it has become much more than an institution charged with interpreting the law. It is an entity that, at various points in the nation’s history, has shaped the political and constitutional course of the country. One key instance is the judiciary's role in validating or nullifying constitutional amendments, such as the Eighth and Seventeenth Amendments. From landmark rulings that defined the balance of power between the executive and legislature to decisions that validated or struck down critical amendments to the constitution, the judiciary has served as both a guardian and, at times, an agent of change in Pakistan's constitutional development.
One of the most significant decisions in Pakistan’s judicial history was the Maulvi Tamizzuddin case. In this case, the Supreme Court upheld the dissolution of the first constituent assembly by the then-Governor-General, Iskander Mirza. This ruling, delivered in 1955, essentially gave the Governor-General unchecked power by relying on the colonial-era Government of India Act 1935. While this decision has been widely criticized by political commentators and historians for reinforcing the dominance of the executive, it nonetheless marked a pivotal moment in the constitutional development of Pakistan.
The question, however, remains whether this decision was truly in the best interest of the country. The judiciary, by siding with the executive, facilitated the concentration of power in the hands of the Governor-General, which set a dangerous precedent for future military interventions and political instability. Historical patterns show that this precedent emboldened future leaders, such as Ayub Khan and Zia-ul-Haq, to dissolve assemblies and suspend the constitution. Moreover, it arguably set in motion a pattern of political instability that the country has continued to struggle with.
However, the judiciary did not always act as an uncritical supporter of executive overreach. In the Usif Patel case, the Supreme Court acted to restrict the powers of the Governor-General, insisting that executive authority could not be exercised without due regard for democratic principles. The Court ruled that the Governor-General could not make laws unilaterally without consulting the constituent assembly. This decision was crucial in emphasizing the importance of legislative bodies in the governance process, a lesson that would resonate in subsequent years as Pakistan’s political system struggled to find equilibrium.
This case marked a turning point, as it began to balance executive power with the need for a functioning, democratic process. Although the executive remained dominant, the judiciary’s ruling signaled that it would not allow unchecked power, making it clear that the state’s organs must function within the boundaries set by the constitution. Legal scholars have since regarded this judgment as a foundational moment for constitutionalism in Pakistan. Over time, this would evolve into a broader judicial philosophy aimed at protecting democracy from the excesses of military and political elites.
Perhaps one of the most contentious and debated aspects of the judiciary's role in Pakistan’s constitutional development has been its endorsement of the doctrine of necessity. Introduced in the Dosso case and reiterated in subsequent rulings, this principle has allowed the judiciary to legitimize martial law in situations of political and constitutional crisis. In State v. Dosso (1958), the court declared that a successful revolution (military coup) was a legitimate source of law. The Dosso case and the Nusrat Bhutto case both saw the judiciary sanction military rule under the premise of safeguarding the nation from instability.
These decisions, while often condemned by political observers for their perceived compromise of constitutional principles, were, in the eyes of the judiciary, a necessary evil in a state where civil institutions were not functioning adequately. The Court in the Nusrat Bhutto case (1977) explicitly stated that General Zia’s takeover was justified by the threat of anarchy and chaos. The doctrine of necessity, however, remains a highly controversial concept, as it has often been used to justify authoritarian rule, undermining the democratic process and eroding public trust in constitutional governance.
The question that remains is whether the judiciary, by endorsing martial law, acted in the best interests of Pakistan's long-term democratic health. While it can be argued that the country was often on the brink of collapse during these periods, the long-term consequences of military rule have been deeply damaging to Pakistan’s democratic institutions. Post-coup analyses show that repeated military interventions have significantly weakened parliamentary authority and civilian oversight mechanisms. The judiciary’s complicity in legitimizing military interventions has arguably delayed Pakistan's progress toward a stable, democratic political culture.
However, in more recent years, the judiciary has also played a key role in promoting democratic reforms. One of the most significant moments in the nation’s constitutional development came with the passage of the 18th Amendment in 2010, which aimed to restore the balance of power between the executive, legislature, and judiciary. This amendment reversed many powers granted to the President under General Musharraf and strengthened parliamentary democracy. This was seen as a major step toward democratic consolidation in Pakistan.
While the amendment was widely celebrated, it was not without controversy. The judiciary’s involvement in its passage and subsequent interpretation highlighted the ongoing tension between the various state organs. Nevertheless, the 18th Amendment represented a clear victory for democratic forces in Pakistan, and the judiciary’s cautious support for the reform process helped ensure that the amendment’s provisions were upheld. Additionally, the judiciary struck down attempts to delay the implementation of the amendment, preserving its core democratic values.
The NRO, which granted amnesty to political leaders and bureaucrats implicated in corruption, was a deeply flawed measure that undermined the principles of justice and fairness. In 2009, the Supreme Court ruled the NRO “null and void ab initio,” restoring pending corruption cases. By declaring it unconstitutional, the judiciary took a strong stand against political corruption, signaling that the rule of law would take precedence over political expediency.
Moreover, the judiciary’s role in overseeing the country’s governance has only grown in importance as Pakistan grapples with issues of political corruption and executive overreach. The need for an independent judiciary to act as a check on the executive and legislature has never been more apparent. Recent decisions, such as the disqualification of Prime Minister Nawaz Sharif in 2017, exemplify the judiciary's increasing intervention in matters of political accountability. The judiciary must remain a bulwark against any attempts to erode the constitutional order.
Furthermore, it is important to note that the judiciary’s effectiveness is contingent upon its ability to remain free from political pressure and interference. The Lawyers' Movement of 2007–2009, which led to the restoration of Chief Justice Iftikhar Muhammad Chaudhry, demonstrated widespread public support for judicial independence. Since then, the judiciary has emerged as a more assertive and independent institution, with the Supreme Court playing an increasingly prominent role in shaping the political landscape.
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In conclusion, Pakistan’s judiciary has played a central role in the country’s constitutional development. From its early decisions that strengthened the executive to its more recent efforts to promote democratic reforms and curb political corruption, the judiciary has been a vital player in shaping the nation’s political and constitutional trajectory. However, its history is also marked by controversy, particularly in its endorsement of military rule and the doctrine of necessity. Despite its contradictions, the judiciary has remained a central institution in the survival and reform of Pakistan’s fragile democracy.
Looking ahead, it is essential that the judiciary continues to function as an impartial and independent institution, committed to upholding the constitution and ensuring that the rule of law prevails. Only by doing so can Pakistan hope to achieve political stability and constitutional development that will serve the best interests of its people. The judiciary’s role in this process remains as critical as ever, and its actions will undoubtedly shape the future of the nation for years to come.
