Given Pakistan’s turbulent political history, the importance of its supposedly autonomous institutions, particularly the judiciary, becomes even more critical in maintaining stability and upholding the rule of law.
Recent constitutional reforms have once again raised questions about the direction of the Supreme Court and the wider judicial system. To understand their possible implications, it is necessary to examine the judiciary’s historical relationship with the executive, legislature, and military establishment.
At the centre of this debate lies the delicate balance between judicial restraint and judicial activism, along with growing concerns about reforms that may limit the judiciary’s constitutional powers.
This article examines the historical development of judicial authority in Pakistan, the movement between restraint and activism, and the possible consequences of reducing judicial independence.
The Early Years: Establishment of Pakistan and the Judiciary, 1947–1956
At independence in 1947, Pakistan inherited the British colonial legal system, including the Government of India Act 1935. This Act served as the country’s provisional constitutional framework until Pakistan adopted its own Constitution.
The judicial structure initially followed the model of British India and consisted of the Federal Court, provincial High Courts, and subordinate courts.
During Pakistan’s formative years, however, the judiciary remained overshadowed by a powerful executive dominated by political leaders, senior bureaucrats, and state administrators.
The courts primarily interpreted inherited colonial laws and had limited space to develop an independent constitutional role.
Political instability, including the assassination of Prime Minister Liaquat Ali Khan in 1951, further weakened the judiciary’s ability to establish institutional independence.
The Maulvi Tamizuddin Khan Case
The judiciary faced its first major constitutional test in 1954 when Governor-General Ghulam Muhammad dissolved the Constituent Assembly.
The dissolution was challenged in the landmark case of Maulvi Tamizuddin Khan v. Federation of Pakistan.
The Sindh Chief Court ruled in favour of Maulvi Tamizuddin Khan, the Speaker of the Constituent Assembly, and declared the dissolution unlawful.
However, the Federal Court, headed by Chief Justice Muhammad Munir, overturned the decision and upheld the Governor-General’s action.
The judgment relied on reasoning that later became associated with the doctrine of necessity, a principle that would repeatedly influence Pakistan’s constitutional history.
The First Constitution and the Doctrine of Necessity, 1956–1958
Pakistan’s first Constitution was introduced in 1956 and established a parliamentary system of government.
The judiciary was expected to act as an independent guardian of the Constitution, fundamental rights, and the rule of law.
However, political instability continued. In 1958, General Ayub Khan imposed martial law and brought the country’s first constitutional system to an end.
The judiciary once again faced the question of whether it should resist an unconstitutional takeover or provide it with legal recognition.
State v. Dosso
In State v. Dosso, the Supreme Court, under Chief Justice Muhammad Munir, validated Ayub Khan’s martial law.
The judgment suggested that a successful revolution or coup could become a new source of law.
This ruling further strengthened the doctrine of necessity and established a dangerous precedent under which unconstitutional military intervention could receive judicial protection.
Instead of acting as a check on military power, the judiciary became subordinate to it.
The Era of Judicial Subservience: Ayub Khan to Yahya Khan, 1958–1971
General Ayub Khan introduced the Constitution of 1962, which created a presidential system and concentrated considerable power in the executive.
Under this arrangement, the judiciary retained formal powers of judicial review but remained institutionally weak and largely unable to challenge the military-led government.
The courts played a restrained role, while executive authority continued to dominate the constitutional system.
Asma Jilani v. Government of Punjab
A significant departure from judicial subservience occurred in Asma Jilani v. Government of Punjab.
In this case, the Supreme Court, headed by Chief Justice Hamoodur Rahman, declared General Yahya Khan’s martial law unconstitutional.
The judgment rejected the legal reasoning adopted in the Dosso case and criticised the use of the doctrine of necessity to validate military rule.
Although the judgment came after Yahya Khan had already left power, it kept alive the principle that unconstitutional takeovers could not automatically become lawful.
The Zulfikar Ali Bhutto Era: Constitution and Crisis, 1971–1977
The period following the disintegration of Pakistan in 1971 witnessed a temporary revival of democratic and constitutional principles under Prime Minister Zulfikar Ali Bhutto.
The Constitution of 1973 restored parliamentary government, recognised fundamental rights, and provided for the separation of powers.
It also aimed to strengthen judicial independence.
Despite these constitutional guarantees, relations between Bhutto’s government and the judiciary remained tense.
Bhutto sought to consolidate political power and was accused of removing or pressuring judges considered hostile to his administration.
Such actions weakened the judiciary’s ability to function independently.
The Trial of Zulfikar Ali Bhutto
The most controversial judicial proceeding associated with this period was Zulfikar Ali Bhutto v. The State, in which the former prime minister was convicted of murder and sentenced to death.
Legal scholars, historians, and political commentators have frequently described the judgment as politically influenced.
It remains one of the most disputed decisions in Pakistan’s judicial history and highlights the importance of an independent judiciary in a politically divided environment.
On 6 March 2024, a nine-member bench of the Supreme Court, headed by Chief Justice Qazi Faez Isa, issued its opinion on a presidential reference filed several years earlier.
The Court concluded that Bhutto’s trial before the Lahore High Court and the Supreme Court did not meet the constitutional requirements of fundamental rights and a fair trial.
The Zia-ul-Haq Era: Islamisation and Judicial Transformation, 1977–1988
General Zia-ul-Haq imposed martial law in 1977 after removing Zulfikar Ali Bhutto’s government.
Zia’s rule transformed Pakistan’s political and legal system through a programme of Islamisation.
The Federal Shariat Court was established, while Islamic legal principles were increasingly incorporated into the country’s laws.
The higher judiciary faced pressure to align itself with the regime’s ideological and political objectives.
Begum Nusrat Bhutto v. Chief of Army Staff
In Begum Nusrat Bhutto v. Chief of Army Staff, the Supreme Court, headed by Chief Justice Anwarul Haq, validated Zia-ul-Haq’s martial law through the doctrine of necessity.
Although the Court attempted to place certain limitations on military authority, the ruling once again provided constitutional protection to an unelected regime.
The judiciary continued to perform a difficult balancing act, maintaining a limited degree of autonomy while avoiding direct confrontation with the military government.
The Return to Civilian Rule and Judicial Independence, 1988–1999
Following General Zia-ul-Haq’s death in 1988, Pakistan returned to civilian government.
This period was dominated by alternating governments led by Benazir Bhutto and Nawaz Sharif.
The judiciary became more active in reviewing executive actions, corruption allegations, abuse of authority, and matters affecting the democratic process.
Benazir Bhutto v. Federation of Pakistan
In Benazir Bhutto v. Federation of Pakistan, the Supreme Court intervened to protect political participation and the democratic process.
The judgment reflected a growing willingness by the judiciary to examine actions taken by the executive.
However, judicial independence remained fragile because both major political governments attempted to influence judicial appointments and court administration.
The Judges Case of 1996
Tensions over judicial appointments eventually led to the Judges Case of 1996.
The Supreme Court asserted a stronger role in judicial appointments and reduced the executive’s ability to exercise unrestricted influence over the process.
The judgment was widely regarded as an important step towards judicial independence.
Nevertheless, throughout the 1990s, the Supreme Court remained caught between competing political forces and struggled to establish a consistent constitutional direction.
The Musharraf Era and the Rise of Judicial Activism
General Pervez Musharraf’s military coup in 1999 once again placed the judiciary at the centre of a constitutional crisis.
In Zafar Ali Shah v. General Pervez Musharraf, the Supreme Court validated the coup by relying on the doctrine of necessity.
However, as Musharraf attempted to prolong his rule, relations between the executive and the judiciary gradually deteriorated.
Under Chief Justice Iftikhar Muhammad Chaudhry, the judiciary became increasingly active in cases involving human rights, corruption, missing persons, public administration, and executive misconduct.
Although Chief Justice Chaudhry had initially taken office under a Provisional Constitutional Order, he later became a leading symbol of resistance to executive control.
The Lawyers’ Movement and Its Impact
In 2007, General Musharraf attempted to remove Chief Justice Iftikhar Muhammad Chaudhry.
The decision triggered a nationwide movement involving lawyers, civil society organisations, political parties, journalists, and ordinary citizens.
The 2007–2009 Lawyers’ Movement became a turning point in Pakistan’s constitutional development.
It elevated the judiciary to the centre of national politics and strengthened its public legitimacy.
The movement also demonstrated that organised civil resistance could challenge both military and executive authority.
The restoration of Chief Justice Chaudhry in 2009 marked the beginning of a more assertive judicial phase.
The Post-Musharraf Judiciary: Expansion of Judicial Power
Following the restoration of democracy and the departure of General Musharraf, the judiciary continued to expand its constitutional and political role.
Under Chief Justice Iftikhar Chaudhry, the Supreme Court entered an era often described as judicial populism.
The Court actively intervened in cases involving governance, corruption, enforced disappearances, public welfare, and constitutional rights.
Cases of Enforced Disappearances
In 2009, the Supreme Court took up cases involving enforced disappearances and directed law-enforcement agencies to produce secretly detained individuals before the courts.
Human rights organisations widely welcomed this intervention.
Disqualification of Prime Minister Yusuf Raza Gilani
In 2012, the Supreme Court disqualified Prime Minister Yusuf Raza Gilani after convicting him of contempt of court.
The controversy arose from his refusal to write to foreign authorities regarding corruption cases involving President Asif Ali Zardari.
Critics described the decision as a judicial coup, arguing that the Court had removed an elected prime minister and interfered with the political mandate of Parliament.
The NRO and Panama Papers Cases
The Supreme Court struck down the National Reconciliation Ordinance in 2010.
The NRO had provided legal protection to several politicians and public officials facing corruption allegations.
In 2017, the Panama Papers case led to the disqualification of Prime Minister Nawaz Sharif.
These decisions confirmed the judiciary’s growing influence over the country’s political direction.
Judicial Intervention in Executive Affairs
During this period, judges increasingly intervened in areas traditionally managed by the executive and legislature.
The courts examined the prices of essential commodities, monitored development funds, reviewed government projects, and conducted surprise visits to public hospitals.
One of the most unusual examples occurred in 2018 when Chief Justice Saqib Nisar established a public fund for the construction of dams.
Such interventions raised serious questions about whether the judiciary was exceeding its constitutional jurisdiction.
Critics argued that judicial activism was weakening the separation of powers and allowing judges to perform functions assigned to elected governments and public administrators.
The 26th Constitutional Amendment: Judicial Reform or Loss of Independence?
The 26th Constitutional Amendment attempted to redefine the relationship among the judiciary, executive, and legislature.
Supporters described it as a response to judicial overreach and an effort to make judicial appointments more transparent.
Critics, however, argued that the amendment weakened judicial independence and increased political control over the courts.
The amendment received presidential assent on 21 October after introducing major structural changes affecting the superior judiciary.
Its central features included:
- Changes in the appointment of the Chief Justice of Pakistan
- Changes in the composition of the Judicial Commission of Pakistan
- The establishment of constitutional benches
- Annual performance evaluations of High Court judges
- A greater parliamentary role in judicial appointments
The speed and secrecy with which the amendment was passed raised concerns about the democratic process.
The proposed text was reportedly not fully disclosed or debated until shortly before voting.
“It is alarming that a constitutional amendment of such great significance was passed secretly in less than 24 hours.”
— International Commission of Jurists
Can Constitutional Amendments Be Reviewed by the Courts?
Article 239(5) of the Constitution states that courts cannot question constitutional amendments passed by Parliament.
However, the Supreme Court has interpreted the extent of this restriction differently.
District Bar Association Rawalpindi v. Federation of Pakistan
In the 2015 case of District Bar Association Rawalpindi v. Federation of Pakistan, the constitutional validity of the 18th and 21st Amendments was challenged.
Thirteen of the seventeen judges held that the Constitution contains certain fundamental or salient features.
These include:
- Democracy
- Parliamentary government
- Independence of the judiciary
- Federalism
- Fundamental rights
The majority held that Parliament’s power to amend the Constitution is not unlimited.
According to this interpretation, Parliament cannot abolish or fundamentally alter the Constitution’s essential features.
Four judges, headed by Chief Justice Nasir-ul-Mulk, disagreed and maintained that Parliament’s constitutional amendment power was not subject to judicial restrictions.
Justice Saqib Nisar criticised the salient-features doctrine as a means of increasing judicial power at the expense of elected representatives.
This disagreement reflects a broader constitutional question: whether unelected judges or elected legislators should have the final authority over constitutional change.
Appointment of the Chief Justice of Pakistan
Before the amendment, the most senior judge of the Supreme Court was traditionally appointed as Chief Justice of Pakistan.
The amendment introduced a special parliamentary committee consisting of 12 members, with representation from the government and opposition.
The committee is responsible for selecting the Chief Justice from among the three most senior Supreme Court judges.
Critics argue that the absence of clearly defined and objective selection criteria may create political competition among senior judges.
Judges may feel pressure to satisfy political actors in order to secure appointment as Chief Justice.
This could create concerns about impartiality, particularly in cases involving the government.
Barrister Asad Rahim Khan compared the new system to a “game of thrones,” arguing that it could introduce political intrigue into a process previously based on seniority.
Changes to the Judicial Commission of Pakistan
The amendment also changed the composition and authority of the Judicial Commission of Pakistan.
The Commission plays a central role in appointing judges and selecting judges for constitutional benches in the Supreme Court and High Courts.
Four parliamentary representatives, two from each house, were added to the Commission, along with a woman or non-Muslim member.
Before the amendment, judges formed a clear majority within the Commission.
Under the revised structure, the judicial members were reduced to five out of a total membership of thirteen.
Critics argue that this change provides the political branches with considerable influence over judicial appointments.
The Commission is also empowered to nominate judges to constitutional benches and determine their terms.
This creates concern that governments may attempt to influence the composition of benches hearing politically sensitive constitutional cases.
Comparison With the United States and India
Government representatives have defended the reforms by referring to judicial appointment systems in countries such as the United States and India.
However, critics argue that these comparisons overlook important institutional differences.
The United States
In the United States, federal judges are nominated by the president and confirmed by the Senate.
Once appointed, they generally serve for life, subject to good behaviour.
Lifetime tenure protects judges from political retaliation, dismissal, or pressure after appointment.
India
In India, the president formally appoints judges of the superior judiciary.
However, appointments are primarily based on recommendations from the judicial collegium.
The collegium consists of the Chief Justice of India and senior judges of the Supreme Court.
Unlike Pakistan’s revised Judicial Commission, India’s collegium does not contain government nominees as regular members.
Critics therefore argue that Pakistan’s new system cannot be justified solely by referring to international examples.
Annual Evaluation of High Court Judges
The amendment provides for annual performance evaluations of High Court judges by the Judicial Commission of Pakistan.
If a judge is considered inefficient, the Commission may refer the matter to the Supreme Judicial Council for possible removal.
However, the amendment does not clearly define the term “inefficient.”
This lack of definition creates the possibility of arbitrary or politically motivated evaluations.
Given the increased number of political representatives within the Commission, critics fear that performance reviews may be used to influence judges or punish decisions unfavourable to the government.
Separation of Powers and Democratic Governance
The separation of powers and a functioning system of checks and balances are essential elements of democratic government.
The French philosopher Montesquieu argued that liberty cannot exist if judicial power is not separated from legislative and executive authority.
“There is no liberty if the judiciary power is not separated from the legislative and executive.”
— Montesquieu
The legal community remains divided over the impact of the 26th Constitutional Amendment.
The International Commission of Jurists described it as a major blow to judicial independence and warned that it would increase political influence over appointments and judicial administration.
Barrister Asad Rahim Khan described the amendment as one of the most serious reversals of judicial independence in decades.
Government representatives, however, argued that the amendment would improve transparency and provide Parliament with a meaningful role in judicial appointments.
The long-term impact of these reforms will depend on whether members of the Judicial Commission and parliamentary committee act fairly, transparently, and independently.
The Supreme Court may ultimately be required to determine whether the amendment violates the salient features of the Constitution.
Conclusion
Pakistan’s judiciary has evolved from a largely restrained and executive-controlled institution into a powerful constitutional actor capable of challenging both civilian and military governments.
Its history has included judicial validation of military coups, resistance to authoritarianism, protection of fundamental rights, political disqualifications, and intervention in executive affairs.
Judicial activism strengthened the courts’ public authority but also created concerns about judicial overreach and interference in the functions of Parliament and government.
The 26th Constitutional Amendment has now moved the debate in another direction by increasing political involvement in judicial appointments, constitutional benches, and the evaluation of judges.
While reforming judicial accountability may be necessary, reforms must not weaken the judiciary’s ability to interpret the Constitution and protect citizens from abuse of power.
In Pakistan’s current political environment, the Supreme Court is often viewed as one of the few institutions capable of resisting unconstitutional authority.
Any attempt to reduce that capacity must therefore be examined carefully.
The central question is whether the amendment represents a legitimate democratic reform or another attempt to weaken constitutional resistance and concentrate power.
Pakistan’s democratic future will depend on maintaining a balanced relationship among Parliament, the executive, and an independent judiciary.