Judiciary

Introduction

The judiciary is a cornerstone of any democratic system, tasked with interpreting the law,
ensuring justice, and upholding the constitution. In Pakistan, the judiciary plays a critical role in
shaping the political landscape, safeguarding fundamental rights, and maintaining a balance of
power among the executive, legislature, and other state institutions. However, its role has been
marked by both commendable achievements and significant controversies, reflecting its complex
relationship with Pakistan’s political and constitutional development.

Historical Evolution of the Judiciary in Pakistan

1. Post-Independence Period (1947-1958)

After independence, Pakistan inherited a judicial system based on British common law.
The judiciary was initially seen as a neutral institution tasked with upholding the
constitution and ensuring the rule of law. However, the early judiciary struggled to
establish its independence, particularly in cases involving the executive.
2. Judicial Complicity during Military Regimes (1958-1988)
The judiciary's role became controversial with the validation of military coups through
the Doctrine of Necessity, first introduced in Maulvi Tamizuddin Khan's case (1955)
and later in State vs. Dosso (1958), where the Supreme Court legitimized General Ayub
Khan’s martial law. Similar patterns were observed during General Zia-ul-Haq’s rule,
where the judiciary often endorsed unconstitutional actions.
3. Judicial Activism and Independence (1988-Present)
The judiciary began asserting greater independence in the late 1980s, culminating in the
Lawyers' Movement (2007-2009), which successfully led to the reinstatement of Chief
Justice Iftikhar Muhammad Chaudhry after his dismissal by General Pervez
Musharraf. This period marked the rise of judicial activism, where the courts took a
proactive role in addressing public grievances and checking the powers of the executive.

Key Functions of the Judiciary in Pakistan

1. Interpretation of the Constitution and Laws

The judiciary interprets constitutional provisions and ensures that laws passed by the
legislature are in accordance with constitutional principles. It resolves ambiguities in
legal texts and provides clarity on constitutional issues.
2. Judicial Review and Checks on Executive Power
The judiciary has the authority to review executive actions and legislative enactments to
ensure they conform to constitutional norms. This power serves as a crucial check on the
abuse of power by the executive and legislature.
3. Protection of Fundamental Rights
The judiciary is tasked with protecting the fundamental rights of citizens as enshrined in
the constitution. Through public interest litigation (PIL) and suo motu notices, the
courts can intervene in cases where citizens' rights are violated.
4. Dispute Resolution and Delivery of Justice
The judiciary adjudicates disputes between individuals, organizations, and the state. It
provides mechanisms for civil, criminal, and constitutional justice, ensuring that legal
conflicts are resolved fairly and impartially.
5. Ensuring the Rule of Law
The judiciary plays a central role in upholding the rule of law by ensuring that laws are
applied uniformly and that no individual or institution operates above the law.

Importance of an Independent Judiciary

1. Upholding the Rule of Law

An independent judiciary ensures that laws are applied uniformly and fairly to all
individuals, regardless of their social, political, or economic status. It prevents arbitrary
use of power by state institutions and guarantees that no one is above the law.
2. Protection of Fundamental Rights and Liberties
The judiciary plays a critical role in protecting the fundamental rights of citizens, such as
freedom of speech, religion, and due process. An independent judiciary can strike down
laws or executive actions that violate constitutional rights, ensuring justice for
marginalized and vulnerable groups.
3. Maintaining the Balance of Power (Separation of Powers)
An independent judiciary acts as a check on the powers of the executive and legislature,
preventing the concentration of authority in any single branch of government. It ensures
that all state institutions operate within their constitutional limits, preserving the principle
of separation of powers.
4. Ensuring Fair and Impartial Justice
Judicial independence is essential for ensuring that judges can make decisions based
solely on legal principles and evidence, free from political pressure, public opinion, or
personal biases. This fosters trust in the legal system and guarantees fair trials for all
individuals.
5. Promoting Accountability and Transparency
An independent judiciary holds public officials accountable for their actions, particularly
in cases of corruption, abuse of power, or violation of legal norms. By ensuring that
government actions are subject to legal scrutiny, the judiciary promotes transparency and
good governance.
6. Safeguarding Democratic Principles
The judiciary plays a vital role in protecting democratic institutions and processes, such
as free and fair elections, freedom of expression, and the right to political participation.
An independent judiciary can nullify unconstitutional amendments or laws that threaten
democratic norms.
7. Fostering Public Confidence in the Legal System
When the judiciary operates independently and impartially, it fosters public trust in the
legal system. Citizens are more likely to seek justice through legal means, reducing the
likelihood of extrajudicial measures, vigilantism, or political unrest.
8. Encouraging Economic Stability and Investment
A predictable and impartial legal system, guaranteed by judicial independence, is
essential for economic growth and attracting foreign investment. Businesses and
 investors seek environments where contracts are enforced fairly, property rights are
protected, and legal disputes are resolved efficiently.
9. Protecting Minority Rights and Vulnerable Groups
An independent judiciary can safeguard the rights of minority groups and marginalized
communities who may face discrimination or exclusion in other spheres of governance.
By upholding constitutional protections, the judiciary ensures equal treatment under the
law.
10. Preventing the Abuse of Emergency Powers
In times of crisis, such as national emergencies or political instability, the judiciary acts
as a guardian against the misuse of emergency powers by the executive. It ensures that
any restrictions on civil liberties are lawful, proportionate, and temporary.

Judicial Activism in Pakistan

1. Definition and Emergence

Judicial activism refers to the proactive role of the judiciary in addressing social,
political, and economic issues, often stepping beyond traditional judicial functions. In
Pakistan, judicial activism gained momentum after the Lawyers' Movement and the
reinstatement of Chief Justice Iftikhar Muhammad Chaudhry.
2. Examples of Judicial Activism
o Disqualification of Prime Ministers: The judiciary played a pivotal role in
disqualifying Yousaf Raza Gillani (2012) and Nawaz Sharif (2017) on charges
of contempt of court and corruption, respectively.
o Suo Motu Actions: The Supreme Court has frequently taken suo motu notice of
issues such as environmental degradation, human rights violations, and
corruption, often intervening in matters of public interest.
o Panama Papers Case: The judiciary’s role in the Panama Papers investigation,
leading to the disqualification of Nawaz Sharif, showcased the courts'
willingness to hold powerful figures accountable.
3. Criticism of Judicial Activism
Critics argue that judicial activism can lead to judicial overreach, where the judiciary
encroaches upon the domains of the executive and legislature, disrupting the balance of
power. Excessive suo motu actions can also divert judicial resources from essential legal
cases.

Methods for Ensuring the Independence of Judges

1. Constitutional and Legal Safeguards

o Separation of Powers: The Constitution guarantees judicial independence (Article
175).
o Security of Tenure: Judges can only be removed by the Supreme Judicial
Council for misconduct or incapacity.
o Protected Salaries: Judges' salaries and benefits are secured and cannot be
reduced during their tenure.
 2. Transparent Appointment Processes
o Judicial Commission of Pakistan (JCP): Ensures merit-based appointments.
o Limited Political Influence: Parliamentary oversight is restricted to prevent
political interference.
3. Financial and Administrative Autonomy
o Independent Budgets: Judiciary controls its financial resources.
o Administrative Control: Courts manage their internal administration without
executive interference.
4. Protection from External Pressures
o Judicial Immunity: Judges are protected from lawsuits for official decisions.
o Security Measures: Enhanced protection for judges handling sensitive cases.
5. Judicial Accountability Mechanisms
o Supreme Judicial Council (SJC): Oversees judicial misconduct while preserving
independence.
o Transparent Disciplinary Procedures: Clear processes for handling misconduct
prevent arbitrary actions.

Challenges Faced by the Judiciary in Pakistan

1. Political Interference and Executive Influence
o Pressure from the executive and political manipulation in high-profile cases
undermine judicial independence.
o Politicization of judicial appointments affects impartiality.
2. Lack of Financial and Administrative Autonomy
o Dependence on the executive for funding limits financial independence.
o Courts face administrative constraints, affecting efficiency.
3. Judicial Corruption and Lack of Accountability
o Instances of bribery and favoritism erode public trust.
o The Supreme Judicial Council (SJC) is often ineffective in addressing judicial
misconduct.
4. Delay in Justice and Case Backlogs
o Overburdened courts lead to delayed justice and massive case backlogs.
o Lack of modernization in case management systems exacerbates inefficiencies.
5. Security Threats to Judges
o Judges handling sensitive cases face threats from extremist groups.
o Inadequate security measures compromise judicial independence.
6. Inconsistent Application of Laws and Judicial Activism
o Accusations of judicial overreach in political cases affect credibility.
o Inconsistent legal interpretations cause uncertainty.
7. Public Perception and Loss of Confidence
o Allegations of corruption and bias have eroded public trust.
o Limited transparency in decision-making contributes to mistrust.
8. Inadequate Legal Framework and Reforms
o Outdated laws and resistance to reforms hinder judicial efficiency.
 o Frontier Crimes Regulation (FCR) 1901Although repealed in 2018, its effects
linger in tribal areas. It denied basic rights like fair trials and was heavily
criticized for collective punishments and lack of due process.
o Laws Governing Labor Rights Many labor laws stem from colonial-era
statutes, such as the Factories Act of 1934, which fail to address modern
workplace rights, protections, and safety standards.

Impact of the Judiciary on Pakistan's Political System

1. Strengthening Democratic Norms

The judiciary has played a critical role in upholding democratic principles, particularly
through its intervention in cases of electoral fraud and corruption. Judicial activism has
also contributed to increased public awareness of legal and constitutional rights.
2. Balancing Power Among State Institutions
The judiciary acts as a check on both the executive and legislature, preventing the
concentration of power and ensuring constitutional compliance. This role is essential for
maintaining the separation of powers in Pakistan's political system.
3. Promoting Accountability and Transparency
Through high-profile cases involving political corruption, the judiciary has promoted a
culture of accountability, compelling public officials to adhere to legal and ethical
standards.
4. Judicial Overreach and Tensions with Other Institutions
While judicial activism has had positive impacts, it has also led to tensions with the
executive and legislature. The disqualification of elected leaders and intervention in
administrative matters have sparked debates over the judiciary's role in governance.

Judiciary’s Role in Constitutional Development

The judiciary in Pakistan has been a pivotal force in shaping the country’s constitutional framework,
navigating the delicate balance between safeguarding democratic principles and succumbing to political
pressures. From interpreting constitutional provisions and protecting fundamental rights to validating
military coups under the Doctrine of Necessity, the judiciary’s role has been both constructive and
controversial. Landmark cases, judicial activism, and oversight of constitutional amendments reflect its
influence in steering the nation’s legal and political evolution. However, instances of judicial overreach
and politicization highlight the challenges faced in ensuring an independent, impartial judiciary essential
for sustainable constitutional development.

o both as a protector of democratic values and as a facilitator of military rule

Positive Roles of the Judiciary

1. Upholding the Constitution and Rule of Law

o Case Study: Asma Jilani vs. Government of Punjab (1972)
The Supreme Court declared General Yahya Khan’s martial law illegal,
rejecting the Doctrine of Necessity and emphasizing the supremacy of the
Constitution.
 2. Judicial Activism and Public Interest Litigation
o Case Study: Hajj Corruption Case (2010)
The judiciary took suo motu action against corruption in the Hajj arrangements,
leading to the removal of the Minister for Religious Affairs, showcasing the
judiciary’s role in curbing corruption.
3. Restoration of Democracy
o Case Study: Lawyers' Movement (2007-2009)
The judiciary, led by Chief Justice Iftikhar Muhammad Chaudhry, resisted
General Pervez Musharraf’s emergency rule. The movement resulted in the
restoration of deposed judges, reinforcing judicial independence.
4. Safeguarding Fundamental Rights
o Case Study: Shehla Zia vs. WAPDA (1994)
The court ruled that environmental protection is a fundamental right under Article
9 (Right to Life) of the Constitution, setting a precedent for environmental
jurisprudence in Pakistan.
5. Check on Executive Power
o Case Study: Nawaz Sharif Disqualification Case (2017)
The Supreme Court disqualified Prime Minister Nawaz Sharif under Article
62(1)(f) for failing to disclose assets, demonstrating the judiciary's power to hold
the executive accountable.

Negative Roles of the Judiciary

1. Validation of Military Coups

o Case Study: State vs. Dosso (1958)
The judiciary validated General Ayub Khan’s military coup using the Doctrine
of Necessity, setting a precedent for future military interventions.
o Case Study: Zafar Ali Shah vs. General Pervez Musharraf (2000)
The Supreme Court validated Musharraf’s coup, granting him the power to
amend the Constitution, further undermining democratic norms.
o The Nusrat Bhutto vs. Chief of Army Staff (1977) case saw the Supreme Court
validate General Zia-ul-Haq's martial law under the Doctrine of Necessity,
ruling that the military takeover was justified to prevent political chaos, further
entrenching judicial support for military interventions in Pakistan’s politics.
2. Judicial Overreach and Politicization
o Case Study: Memogate Scandal (2011)
The Memogate Scandal (2011) involved an alleged secret memo sent by
Pakistan's civilian government to the U.S., seeking support against a potential
military coup following the Osama bin Laden raid. The Supreme Court, led by
Chief Justice Iftikhar Muhammad Chaudhry, initiated a judicial probe into the
case, which heightened civil-military tensions and was criticized for judicial
overreach into political affairs.
3. Inconsistent and Politicized Judgments
 o Case Study: Zulfiqar Ali Bhutto Execution (1979)
The judiciary upheld the controversial death sentence of Prime Minister
Zulfiqar Ali Bhutto under General Zia-ul-Haq’s regime, widely criticized as a
politically motivated decision rather than a fair trial.
4. Corruption and Lack of Accountability
o Case Study: Arsalan Iftikhar Corruption Case (2012)
The son of Chief Justice Iftikhar Muhammad Chaudhry was accused of
receiving bribes to influence judicial decisions, exposing corruption within the
judiciary and raising concerns about judicial accountability.
5. Delays and Case Backlogs
o Case Study: Missing Persons Cases
Despite numerous suo motu actions regarding enforced disappearances, many
cases remain unresolved for years, highlighting judicial inefficiency and delays in
delivering justice.

Power of Judicial Review and Its Limits in the Context of Pakistan

Judicial review is the authority of the judiciary to scrutinize and examine the legality,
constitutionality, and fairness of actions taken by the executive and legislative branches of
government. In Pakistan, judicial review serves as a crucial mechanism for maintaining the
supremacy of the Constitution and ensuring the protection of fundamental rights. While judicial
review is an essential feature of Pakistan’s legal framework, it is also bound by certain
limitations that ensure a balance between the branches of government.

Power of Judicial Review in Pakistan

1. Constitutional Basis

The power of judicial review in Pakistan is enshrined in the Constitution, primarily under
Articles 184, 199, and 203. These articles empower the judiciary to review executive and
legislative actions, ensuring they conform to the constitutional framework and respect individual
rights.

 Article 184(3): This article grants the Supreme Court of Pakistan original jurisdiction to
examine matters of public importance concerning the enforcement of fundamental rights.
If the government violates or disregards fundamental rights, the Supreme Court has the
authority to intervene and issue appropriate orders or directives.
 Article 199: This article empowers the High Courts to issue writs for the enforcement of
fundamental rights. High Courts can also examine administrative actions, ensuring that
they conform to the Constitution and laws of Pakistan.
  Article 203: This article authorizes the Federal Shariat Court to examine laws in light of
Islamic principles. The Federal Shariat Court can determine if a law is consistent with the
teachings of Islam, providing another layer of judicial review in Pakistan.

2. Scope of Judicial Review

 “The judiciary’s primary duty is to protect the Constitution, and when the Constitution is
violated, it is the duty of the judiciary to strike down unconstitutional actions.” – Justice
John Marshall, U.S. Supreme Court (Marbury v. Madison, 1803)

Judicial review in Pakistan extends to a wide range of actions by both the executive and
legislative branches:

 Legislative Actions: Courts in Pakistan have the power to invalidate laws passed by the
legislature if they are found to be unconstitutional or infringe upon the fundamental rights
of citizens. The judiciary ensures that laws passed by Parliament align with the
Constitution and its principles.
 Executive Actions: The judiciary can examine executive orders, decisions, or actions. If
an executive act exceeds the authority granted to the government or violates the
Constitution, the courts can strike it down. For example, actions taken by government
departments or agencies must comply with constitutional mandates, and courts can
intervene if these actions violate the law.
 Constitutional Amendments: Judicial review can extend to constitutional amendments,
particularly when they undermine the core principles of the Constitution. For instance,
the Supreme Court of Pakistan has asserted its authority to review constitutional
amendments to ensure they do not violate the "basic structure" of the Constitution (as
established in the 18th Amendment Case of 2010). The court ruled that certain
amendments that threaten democratic principles, such as the independence of the
judiciary, cannot be passed unchallenged.
 Protection of Fundamental Rights: Judicial review is a powerful tool to protect the
fundamental rights guaranteed by the Constitution. The courts can declare laws or
executive actions unconstitutional if they violate the rights of citizens, such as the right to
life, liberty, equality, and freedom of speech.

Significant Cases in Pakistan’s Judicial Review

Several landmark cases in Pakistan have defined the scope and limits of judicial review,
demonstrating how the judiciary exercises its power to maintain constitutional order.

 Maulvi Tamizuddin Case (1955): This case involved the dismissal of the Constituent
Assembly of Pakistan by the Governor-General, Ghulam Mohammad. The case
highlighted the judicial struggle for independence and established the early limitations on
judicial review, where the judiciary refrained from challenging certain political decisions
made by the executive.
  Asma Jilani Case (1972): In this case, the Supreme Court declared the imposition of
martial law by General Yahya Khan as illegal, reaffirming the judiciary's power to review
and declare unconstitutional military actions. This marked a significant moment where
the judiciary took a firm stand against unconstitutional military rule.
 Zafar Ali Shah Case (2000): This case revolved around General Pervez Musharraf’s
military coup. While the Supreme Court acknowledged the coup as a necessity for
restoring order, it upheld the principle that future unconstitutional military actions would
be subject to judicial review, indicating the limits of judicial intervention in cases of
military intervention.
 18th Amendment Case (2010): This case addressed the legality of the 18th Amendment,
which curtailed the powers of the President and enhanced the powers of the Prime
Minister. The Supreme Court reaffirmed its power of judicial review and stated that
constitutional amendments could be reviewed if they violated the Constitution's basic
structure.

Limits of Judicial Review in Pakistan

While judicial review is a powerful tool in ensuring the Constitution's supremacy, it is not
without limitations. The judiciary in Pakistan operates within certain boundaries to maintain the
balance of power among the executive, legislature, and judiciary.

1. Doctrine of Separation of Powers

 The separation of powers principle restricts the judiciary from encroaching on the
powers of the executive and legislature. Judicial review is not meant to replace the roles
of the executive or legislature but to ensure that their actions remain within the
constitutional framework.
 Implication: Courts exercise restraint in intervening in purely political or policy
decisions made by elected representatives unless they violate constitutional provisions.
For instance, decisions regarding foreign policy or national security are often beyond
judicial review due to their political nature.

2. Constitutional Amendments

 While the judiciary in Pakistan has the power to review constitutional amendments, it
respects the sovereignty of Parliament in making such amendments. However, the court
may intervene if an amendment violates the “basic structure” of the Constitution.
 Example: In the 18th Amendment Case, the Supreme Court asserted its right to review
amendments but clarified that the Constitution allows Parliament to make amendments
unless they threaten the Constitution’s fundamental principles, such as the independence
of the judiciary.

3. Non-Justiciable Matters
  Some matters are considered non-justiciable, meaning they are not subject to judicial
review. These include areas related to foreign policy, defense, and national security,
which are deemed to fall under the exclusive jurisdiction of the executive.
 Implication: The judiciary typically refrains from reviewing government decisions
regarding military actions, diplomatic relations, or defense strategies unless there is a
clear constitutional violation or infringement of rights.

4. Limited Review of Political Questions

 The political question doctrine suggests that the judiciary should refrain from
intervening in political questions that require policy decisions best made by elected
officials.
 Example: The judiciary may avoid adjudicating matters that pertain to the legitimacy of
political actions or the distribution of power among political entities, as these decisions
are better left to political bodies.

5. Avoiding Judicial Activism

 Judicial activism refers to a situation where courts become excessively involved in

policymaking or take actions that go beyond interpreting the law. Courts in Pakistan have
often been accused of judicial activism when they intervene in executive or legislative
functions.
 Implication: The judiciary exercises self-restraint in ensuring that its powers of judicial
review are not misused to make policy decisions, thereby avoiding excessive
encroachment into areas traditionally managed by the executive or legislature.

6. Adherence to Procedural Rules

 Judicial review in Pakistan is constrained by the principle of procedural regularity.

Courts can only review cases that are brought before them through legal processes, and
they must adhere to the rules and guidelines outlined by the Constitution and statutes.
 Implication: Courts are limited to reviewing cases where the proper legal procedures
have been followed, preventing them from acting on matters that have not been formally
presented.

7. Time Constraints

 The judiciary in Pakistan often faces challenges such as case backlogs, delays in
proceedings, and an overburdened judicial system. These factors can limit the
effectiveness of judicial review, particularly in complex or urgent cases that require swift
intervention.
 Example: Lengthy delays in judicial review cases can weaken the impact of judicial
decisions, especially in matters involving fundamental rights or urgent political
situations.
Conclusion

The power of judicial review in Pakistan is a critical mechanism for ensuring the Constitution’s
supremacy, protecting fundamental rights, and maintaining the separation of powers. While the
judiciary’s role in reviewing the actions of the executive and legislature is essential, it is bound
by certain limits, such as adherence to the doctrine of separation of powers, respect for non-
justiciable matters, and avoiding judicial activism. By navigating these limitations, the judiciary
in Pakistan can balance its power and responsibilities while contributing to the stability and
integrity of Pakistan’s democratic and constitutional framework.

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