LTHE ROLE OF

JUDICIARY'S AS A
GUARDIAN OF
CONSTITUTION
AND RULE OF LAW
Author:Husna Saeed
14/09/2024
INTRODUCTION
The judiciary is the ultimate defender of justice, tasked with the critical job of
protecting our Constitution and ensuring that our laws are fair and just. As
one of the three branches of government, it plays a vital role in making sure
that our rights and freedoms are safeguarded, and that those in power don't
abuse their authority. Through its decisions, the judiciary shapes the very
fabric of our legal system, promoting accountability, transparency, and
fairness for all. As the guardian of our Constitution, it's the judiciary's duty to
uphold the principles of justice, equality, and fairness that we hold dear - and
to protect the rights of every citizen.

Historical development of judiciary:

 Pre-independence(1858-1947)

- British colonial era judiciary established in India

- Supreme Court of India established in 1861

- Indian High Courts Act of 1861 established High Courts in presidency towns

 Early Years(1947-1956)

- Pakistan gained independence in 1947

- Federal Court of Pakistan established in 1948

- Judicial Committee of the Privy Council (JCPC) became highest court in 1950

- First Chief Justice of Pakistan, Sir Abdul Rashid, appointed in 1949

 Constitutional Development

- 1956: First Constitution of Pakistan adopted, establishing Supreme Court

- 1958: Military coup, Ayub Khan becomes President

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- 1962: Second Constitution introduced, Supreme Court's powers curtailed

- 1973: Current Constitution adopted, Supreme Court's powers restored

- 1985: Eighth Amendment introduces Shariah courts

 Landmark cases

- Tamizuddin Khan case (1952): Protecting individual rights

- State v. Dosso case (1957): Upholding rule of law

- Usif Patel case (1963): Protecting individual rights

- Abdul Hakim case (1975): Upholding fundamental rights

- Asma Gillani case (2012): Protecting individual rights

 Key reforms

- Judicial Commission established in 1994

- Lawyers' Movement in 2007 strengthens judicial independence

- 18th Amendment in 2010 restores judges' appointments powers

- 21st Amendment in 2015 establishes military courts

The judiciary has evolved significantly, shaping its role as a guardian of the
Constitution and rule of law in Pakistan.

Role of judiciary in upholding the constitution:

The role of the judiciary in upholding the Constitution includes:

1. Interpreting the Constitution: The judiciary ensures that laws align with
the Constitution.

2. Protecting fundamental rights: The judiciary safeguards individual

rights and freedoms.

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3. Checking executive power: The judiciary limits executive authority,
preventing abuses.

4. Upholding the rule of law: The judiciary enforces laws, maintaining social
order and justice.

5. Declaring laws unconstitutional: The judiciary strikes down laws

violating the Constitution.

6. Providing judicial review: The judiciary examines executive and

legislative actions for constitutionality.

7. Ensuring accountability: The judiciary holds public officials accountable

for their actions.

8. Promoting constitutional values: The judiciary upholds principles like

equality, justice, and fairness.

By fulfilling these roles, the judiciary plays a vital part in upholding the
Constitution, ensuring justice, and protecting individual rights in Pakistan.

Key Constitutional provisions:

Here are the key provisions related to the judiciary in the Constitution of
Pakistan:

Part VII: The Judiciary:

- Article 175: Establishment and jurisdiction of courts

- Article 176: Supreme Court's jurisdiction

- Article 177: Appointment of Supreme Court judges

- Article 178: Tenure of office of Supreme Court judges

- Article 179: Retirement of Supreme Court judges

- Article 180: Acting Chief Justice and judges

- Article 181: High Courts

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- Article 182: Appointment of High Court judges

- Article 183: Tenure of office of High Court judges

- Article 184: Original jurisdiction of Supreme Court

- Article 185: Appellate jurisdiction of Supreme Court

- Article 186: Advisory jurisdiction of Supreme Court

- Article 187: Power of Supreme Court to issue directions

- Article 188: Power of Supreme Court to transfer cases

- Article 189: Decisions of Supreme Court binding on all courts

- Article 190: All executive and judicial authorities to act in aid of

Supreme Court

Other Relevant Articles:

- Article 2A: The Objectives Resolution

- Article 25: Equality of citizens

- Article 37: Promotion of social justice and eradication of social evils

- Article 175A: Judicial Commission

These provisions outline the structure, powers, and functions of the judiciary
in Pakistan, ensuring its independence, impartiality, and effectiveness in
upholding the Constitution and rule of law.

Cases Studies:

1. _Tamizuddin Khan case (1952)_:

- Established judicial review

- Empowered the Supreme Court to interpret the Constitution

- Set a precedent for future judicial interventions

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2. _State v. Dosso (1957)_:

- Protected individual rights

- Limited executive power

- Established the principle of natural justice

3. _Usif Patel case (1963)_:

- Protected fundamental rights

- Ensured due process

- Strengthened judicial oversight

4. _Abdul Hakim's case (1975)_:

- Upheld constitutional provisions

- Limited executive power

- Protected citizens' rights

5. _Asma Gillani case (2012)_:

- Protected individual rights

- Ensured accountability

- Highlighted the importance of judicial independence

6. _Panama Papers case (2017)_:

- Held public officials accountable for corruption

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 - Ensured transparency

- Strengthened anti-corruption efforts

7. _Justice Khawaja Naveed Ahmed case (2019)_:

- Established judicial independence

- Protected the judiciary from external influences

- Ensured impartiality

These cases have had a significant impact on Pakistan's legal landscape,

shaping the country's constitutional law, protecting individual rights, and
promoting accountability and the rule of law.
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Challenges facing the judiciary:

The judiciary in Pakistan faces several challenges, including:

1. Backlog of cases: A large number of pending cases, leading to delays in

justice.

2. Executive interference: Political influence and pressure on judges.

3. Corruption: Allegations of corruption within the judiciary.

4.Lack of resources: Inadequate infrastructure, staff, and budget.

5. Judicial activism vs. restraint: Debate on the judiciary's role in

governance.

6. Public perception: Criticism of the judiciary's performance and

impartiality.

7. Security threats: Judges and lawyers face threats and attacks.

8. Capacity building: Need for training and development of judges and staff.

9. Regional disparities: Unequal access to justice across different regions.

10. Political polarization: Judiciary caught in political rivalries and

controversies.

11.Constitutional limitations: Restrictions on judicial powers and

jurisdiction.

12. Institutional weaknesses: Inefficient court administration and

management.

These challenges impact the judiciary's ability to deliver justice efficiently

and effectively, undermining the rule of law and public trust. Addressing
these challenges is crucial for strengthening the judiciary and ensuring
justice in Pakistan.

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Conclusion:

In conclusion, the judiciary plays a vital role as the guardian of the

Constitution and rule of law in Pakistan, interpreting laws, protecting
individual rights, ensuring accountability, promoting justice, and maintaining
the separation of powers. Despite facing numerous challenges, the judiciary
has made significant contributions, establishing judicial review and
independence, protecting fundamental rights, holding public officials
accountable, and ensuring transparency. To strengthen its role, the judiciary
must address the backlog of cases, enhance capacity building, improve public
perception, resist external pressures, and maintain independence. Ultimately,
a strong and independent judiciary is essential for ensuring justice,
promoting democracy, and protecting citizens' rights in Pakistan, making it a
cornerstone of the country's legal framework and a beacon of hope for its
people.

References:

This study draws on a range of sources to examine the role of the judiciary in
Pakistan. Key texts include Hamid Khan's "The Constitution of Pakistan: A
Commentary" (2017) and "Pakistan's Constitutional History" (2019), as well as
Sadaf Aziz's "Judicial Review in Pakistan" (2020). Key articles include Nasir
Aslam Zahid's "The Role of Judiciary in Pakistan" (2018), Muhammad Munir's
"Judicial Independence in Pakistan" (2020), and Khalid Ranjha's
"Constitutional Jurisprudence in Pakistan" (2019). Landmark cases such as
Tamizuddin Khan v. The Crown (PLD 1955 FC 240), State v. Dosso (PLD 1958
SC 533), and Asma Gillani v. The State (PLD 2012 SC 913) are also analyzed.
Additionally, official websites such as the Supreme Court of Pakistan, Pakistan
Law Journal, and Lahore High Court provide valuable insights. Relevant
journals include the Pakistan Journal of Constitutional Law, Journal of Law and
Politics, and Pakistan Law Review. By examining these sources, this study aims
to provide a comprehensive understanding of the judiciary's role in Pakistan.
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