By Javaria Sehar
“Judiciary has always worked as an independent institution in Pakistan, but the alliances of its leadership made it dependent on elected and unelected institutions of state” – Advocate Umar Gilani.
Pakistan is a federation. A written constitution, bicameral legislature, and an independent judiciary are some of the federation’s essential features. The relationship between federation and judiciary is best analyzed through the lens of constitutionalism. The judiciary’s leadership, decisions, and operational mechanism decide the image of the judicial institution. This article discusses the role of the judiciary as an institution in the history of the federation of Pakistan.
Status of Judiciary in Constitutions
Pakistan inherited a ‘healthy judicial system’ that adopted an impartial procedure of appointment of judges. The problem stemmed from the fact that the interim constitution did not separate the judiciary from the executive i. The practices of colonial masters were not abandoned after independence. The constitution of 1956 mentioned ‘separation of judiciary from executive’ as the desired objective of the state’s policy. The presidential constitution of 1962 did not initiate the process of separation. The constitution of 1973, Article 175 (3), fixed the time for the judiciary’s development as an independent institution. The military coup and suspension of the constitution by Zia further delayed the process. It was the year 1987 when the Sharif Faridi vs. Federation of Pakistan case initiated an independent judiciary process.
Extraconstitutional Decision of Judiciary
The dominance of military-bureaucratic oligarchy was hereditary in the over-developed state structure of Pakistan. This led to the practice of undermining the elected institution by unelected institutions of state. The politicization of judiciary emerged in 1954 when the court validated the order of governor-general of dissolution of constituent assembly through the doctrine of necessity in the Federation of Pakistan vs. Tamizuddin Khan case. In 1958, The Dosso vs. Federation of Pakistan case provided legitimacy to the military coup of Ayub Khan. Another military coup of Zia-ul-Haq was declared valid in the Nusrat Bhutto vs. Chief of Army Staff case. All these decisions dealt a severe blow to the supremacy of parliament and democracy in Pakistan.
Leadership of Judiciary
The judges involved in the above -mentioned cases set precedence for judicial leadership; Justice A.R. Cornelius and Justice Muhammad Munir. Both held positions of high esteem before becoming the chief justice of Pakistan. The Federation vs. Tamizuddin Khan case is an interesting case study to understand both the judges’ judicial approach. Justice Munir invoked ‘Doctrine of Necessity’ to declare the act of governor-general as lawful, while Justice Cornelius wrote a dissension note to this decision.
The role of the judiciary as an institution in the federation can be well summed up in the following statement of Hamid Khan:
“If constitutionalism and constitutional government are to strive, the judges should never leave it to the government of the day to determine how much judicial control it will or will not tolerate. It is for them to state how much abuse of power they will or will not permit”.
i Government of India Act 1935, Part 4, Chapter 1, Section 214