he idea of a modern state is predicated on separation of powers to ensure independence of the Judiciary, autonomy of the Executive and sovereignty of the Legislature. This necessitates that none of the three try to grab the space that belongs to another. The concept of separation of powers, in its modern form, is attributed to the French ideologue Montesquieu who explained it in his famous treatise The Spirit of Laws. It was incorporated in the constitutional structure of first modern republic i.e., the United States. The framers of the 1973 Constitution of Pakistan envisaged adherence to this principle and have made it an integral part of the constitution.

An early test for the newly established country’s superior courts was the Maulvi Tamizuddin Khan case (1955). The case was lodged following the dissolution of the first Constituent Assembly by then governor general, Ghulam Muhammad. The dismissal was challenged by Tamizuddin, the president of the assembly. The Federal Court of Pakistan (now the Supreme Court) ruled in favour of the governor general and upheld the dissolution of the assembly. Except for one dissenting judge, all members of the bench upheld the dismissal on the basis of ‘necessity’. Justice Mohammad Munir, the second chief justice, presided over the bench. He has been criticised by many for this decision seen to have opened the door for adventurism against the constitutional supremacy in the country.

The first constitution of Pakistan, promulgated in 1956, was abrogated by the first martial law on October 7, 1958. The validation of the martial law order in the State vs Dusso and Others case further tarnished the credibility of independence of the Judiciary. Before the imposition of first martial law in 1958, the Judiciary had enjoyed considerable independence as an institution. However, during the Ayub period, there was much political interference in the appointment of judges to the apex court through regulation by the Bar Council Order. The regime limited the courts’ jurisdiction to review Executive’s decisions. The installation of military courts further lowered the people’s confidence in the Judiciary. The 1962 constitution further curtailed the jurisdiction of the courts and denied them the authority to enforce fundamental rights by issuing writs of habeas corpus and mandamus.

The judgment in Asma Jilani case somewhat revived the image of the Judiciary as Yahya Khan was declared a usurper and his martial law unconstitutional. However, the martial law regime did not transfer power to elected leaders until after the secession of East Pakistan. In 1977, fresh elections were called by prime minister Bhutto. However, following allegations of rigging by the nine-party opposition alliance, Pakistan National Alliance (PNA), street agitation paralysed the administration. A martial law was then imposed by Gen Zia-ul Haq. The Supreme Court validated the actions of martial law authorities by invoking the Doctrine of Necessity. To make matters worse, the court also allowed Zia to amend the constitution.

Arguably the lowest point in the judicial history was the conviction and sentencing to death of Bhutto, a popular leader and former prime minister of the country. The original decision was given by a Lahore High Court full bench, after dismissing several applications alleging bias against the chief justice. The Supreme Court upheld the judgment and dismissed the appeal by Bhutto. Two judges who could have exonerated Bhutto were excluded from the process after one of them retired and the other was taken ill. This case has remained controversial in legal terms as well as in popular public memory. It also dealt a severe blow to the reputation of the Judiciary and left an indelible mark on the public mind.

Towing the same line of earlier decisions, the Supreme Court unanimously validated the military coup in 1999 of Gen Pervez Musharraf in the Zafar Ali Shah case and gave him the authority to amend the constitution. This acquiescence with the Executive lasted until the ouster and reassertion of Justice Iftikhar Muhammad Chaudhary as chief justice of Pakistan.

Some of the lost glory was restored when the court struck down the establishment of military courts formed for speedy justice and fundamental rights were also revived after their suspension under an emergency order. Further, the full court presided over by Justice Khalil-ur Rehman Ramday struck down the ouster of Justice Iftikhar Muhammad Chaudhary. For a while, the courts were held in high esteem by most people.

Afterwards, two elected prime ministers were ousted from power through Supreme Court orders. Yousuf Raza Gilani was sacked for his failure to comply with judicial orders and Nawaz Sharif for not declaring potential income for income tax record. This was seen by many as judicial overreach and a bid by the courts to control the Executive.

More recently, several political questions such as the matter of no-confidence motion by the opposition and its resistance by the PTI government; the issue of defection of members of a political party and the powers of party head and parliamentary party leader; and holding of elections within 90 days of the dissolution of an assembly have been brought before the apex court. Political parties and their supporters have been discussing the formation of benches and speculating about the outcome of sub judice cases. It has been argued that the courts should not entertain cases requiring adjudication of essentially political questions and leave those to politicians to decide. ‘Extensive’ use of suo motu powers and the chief justices’ discretion in forming benches are also under attack.

The writer has PhD in history from Quaid-i-Azam University, Islamabad. He heads the History Department at University of Sargodha. He has worked as a research fellow at Royal Holloway College, UoL. He can be reached at abrar.zahoor@hotmail.com. He tweets @AbrarZahoor1