An independent judiciary with credible jurisprudence is a sine qua non in a functional democracy. Following frequent interventions by unelected institutions, Pakistan is now described as a ‘hybrid regime’ rather than a true democracy.

The Judiciary and Politics in Pakistan, 1999-2013 by Najeeb-ur Rehman sheds light on the role of superior courts in this regard. In the year 2000, the Supreme Court judgment in Zafar Ali Shah Case condoned the 1999 coup by Gen Pervez Musharraf citing state necessity in line with similar judgments rendered in 1955, 1977, 1988, 1990 and 1997, by invoking the principle of status populi suprema lex (the welfare of the people is the supreme law). The constitutionalist principles of jurisprudence had earlier been grossly violated in the 1977 Nusrat Bhutto Case. Musharraf, deemed by the court to have occupied a constitutional office, was also allowed to amend the constitution.

In recent decades, Pakistan has witnessed a surge in judicialisation of politics in the garb of suo moto actions. The superior courts have gravitated towards a position of establishing themselves as interpreters of the constitution, over and above the parliament. It has been argued that the constitution is above the parliament as opposed to the idea that as creator of the constitution and all laws, the parliament is supreme.

Following the Lawyers’ Movement for the restoration of democracy, Justice Chaudhry appeared willing to override not only the Executive but also parliamentary supremacy as a sovereign institution. The Supreme Court’s disqualification of Prime Minister Yousaf Raza Gillani amounted to a judicial coup. No wonder it led to speculations about the formation of an interim government and a call for fresh elections ostensibly to free the government of corruption. The removal of a prime minister who enjoyed majority support in the National Assembly damaged the democracy.

Justice Chaudhry’s reputation for personal integrity suffered a setback when Malik Riaz, a property tycoon, accused his son, Arsalan Chaudhry, of receiving gifts and favours worth Rs 340 million from him with a tacit understanding of certain cases being decided in his favour. This quickly became the talk of the town and most media outlets gave it saturation coverage for several days. Unfortunately, there was no satisfactory refutation of the allegations.

Confrontation between the Executive and the Judiciary became extreme under Justices Iftikhar Chaudhary and Saqib Nisar. On some occasions, it was speculated that a promulgation of martial law was imminent.

In 2017-18, an investigation team including intelligence officers was formed by the apex court to dig up evidence against the then PM Nawaz Sharif.

Article 63 of the constitution as interpreted by the Supreme Court appeared to have replaced Article 58(2)(b) as an instrument to dismiss prime ministers in spite of majority support in the National Assembly. Although Justice Asif Saeed Khosa had already dismissed an appeal in 2015 seeking disqualification of Nawaz Sharif under Article 62 by stating that some provisions of the article were not amenable to ‘legally enforceable standards’ and that the jurisprudence on the applicability of Articles 62 and 63 was underdeveloped, unenforceable and controversial, Justice Nisar ruled in 2017 that any person who suffered from lack of qualification under Article 62 or disqualification under Article 63 will also be disqualified to head a political party.

Justice Nisar also stated that the public deserved leaders of ‘good character.’

A tug of war seems to have continued between the Executive and the Judiciary over several matters of public importance. It has been argued that public interest litigation invoking suo motu provisions emerged as a mechanism for the Supreme Court’s populist forays. In 2016, the government tabled the 24th Constitutional Amendment in the parliament proposing changes in Article 184 to provide, in accordance with the principles of fundamental rights of the citizens, the right of appeal to an aggrieved party against a judgment of the apex court in a suo motu case. The bill was never passed. During the tenure of Justice Chaudhry alone nearly 450 constitutional petitions were entertained under Article 184(3) and hundreds of suo motu notices taken.

Rehman concludes that “the history of judiciary in Pakistan is of immense importance because some of its decisions shaped the political history of Pakistan” and “at times its decisions helped undemocratic forces derail the democracy.”

Dr Mohammad Waseem has similarly argued in his perceptive book, Political Conflict in Pakistan (2021), that “many consider the Judiciary a factor in the underdevelopment of democracy in Pakistan ever since the 1954 Tamizuddin Case.”

Dr Muhammad Abrar Zahoor has a 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, University of London. He can be reached at abrar.zahoor@hotmail.com. His X handle: @AbrarZahoor1

Advocate Rai Ahmad Raza practices law in Lahore. He tweets @raiahmed2004