Discus the role of judiciary in the constitutional development of Pakistan.

Introduction

In Marbury v. Madison (1803), US Chief Justice John Marshall declared: "It is emphatically the province and duty of the judicial department to say what the law is." The judiciary's record in Pakistan's constitutional development is mixed. At critical moments, courts legitimised dissolutions of assemblies and military coups through the doctrine of necessity, weakening constitutional government. At other moments, they declared martial law illegal, restored dismissed governments, protected fundamental rights and finally rejected extra-constitutional rule. Understanding this dual role is essential to understanding why constitutionalism in Pakistan has been so fragile and how it has gradually strengthened.

Overview

Pakistan's superior judiciary consists of the Supreme Court, the high courts and the Federal Shariat Court. Under the 1973 Constitution, the Supreme Court has original jurisdiction in disputes between governments and in matters of public importance involving fundamental rights (Article 184(3)), and the high courts have writ jurisdiction (Article 199). The judiciary has decided almost every major constitutional crisis: the dissolution of assemblies in 1954, 1988, 1990, 1993, 1996 and 2022, the coups of 1958, 1977 and 1999, and disputes over amendments and elections.

The negative role: legitimising unconstitutional actions

1. Maulvi Tamizuddin (1955).

The Federal Court, under Chief Justice Munir, held that the Constituent Assembly's laws needed the Governor-General's assent, effectively validating Ghulam Muhammad's dissolution of the Assembly in 1954. The Special Reference of 1955 then invoked the doctrine of necessity. (Reference: Federation of Pakistan v. Maulvi Tamizuddin Khan, PLD 1955 FC 240; Special Reference No. 1 of 1955, PLD 1955 FC 435.)

2. Dosso (1958).

Relying on Hans Kelsen's theory that a successful revolution creates a new legal order, the Supreme Court validated the 1958 martial law, giving coup-makers judicial cover. (Reference: State v. Dosso, PLD 1958 SC 533.)

3. Nusrat Bhutto (1977).

The Supreme Court validated Zia-ul-Haq's martial law under the doctrine of necessity and allowed him to amend the Constitution, though it described the takeover as temporary. (Reference: Begum Nusrat Bhutto v. Chief of Army Staff, PLD 1977 SC 657.)

4. Zafar Ali Shah (2000).

The Supreme Court validated Pervez Musharraf's coup of October 1999, gave him three years to hold elections and authorised him to amend the Constitution. (Reference: Syed Zafar Ali Shah v. General Pervez Musharraf, PLD 2000 SC 869.)

The positive role: defending constitutionalism

1. Asma Jilani (1972).

The Supreme Court overruled Dosso, declared Yahya Khan a "usurper" and his martial law illegal, rejecting Kelsen's theory in Pakistan's context. (Reference: Asma Jilani v. Government of the Punjab, PLD 1972 SC 139.)

2. Restoration of the Nawaz Sharif government (1993).

The Supreme Court declared the dissolution of the National Assembly under Article 58(2)(b) unlawful and restored the government, asserting that the President's power was not unlimited. (Reference: Muhammad Nawaz Sharif v. President of Pakistan, PLD 1993 SC 473.)

3. The Judges' case (1996).

In Al-Jehad Trust, the Supreme Court required that the Chief Justice be consulted meaningfully in judicial appointments and that the senior-most judge normally be appointed Chief Justice, strengthening judicial independence. (Reference: Al-Jehad Trust v. Federation of Pakistan, PLD 1996 SC 324.)

4. The Sindh High Court Bar Association case (2009).

After the lawyers' movement restored Chief Justice Iftikhar Chaudhry, the Supreme Court declared Musharraf's emergency of 3 November 2007 unconstitutional and rejected the doctrine of necessity for the future. (Reference: Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 879.)

5. Fundamental rights and public interest litigation.

Through Article 184(3), courts have protected rights to life, environment, education and fair trial, as in Shehla Zia (1994), which recognised the right to a clean environment as part of the right to life. (Reference: Shehla Zia v. WAPDA, PLD 1994 SC 693.)

6. The basic structure debate and the 18th and 21st Amendments.

In the District Bar Association Rawalpindi case (2015), the Supreme Court held that it could examine constitutional amendments against the salient features of the Constitution, while upholding the 18th and 21st Amendments. (Reference: District Bar Association, Rawalpindi v. Federation of Pakistan, PLD 2015 SC 401.)

7. High treason and Article 6.

The 18th Amendment amended Article 6 so that no court could validate an act of high treason. In 2019, a special court convicted Pervez Musharraf of high treason, a historic step, though the verdict was later disputed; the Supreme Court upheld it in 2024. (Reference: Constitution of Pakistan, Article 6(2A); Special Court judgment, 17 December 2019; Supreme Court of Pakistan, judgment of 10 January 2024.)

8. Accountability of the executive.

Courts have held prime ministers accountable, disqualifying Yousaf Raza Gilani (2012) for contempt and Nawaz Sharif (2017), and in April 2022 restored the National Assembly after its unconstitutional dissolution. These decisions affirmed the supremacy of the Constitution, though critics argued some went too far. (Reference: Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif, PLD 2017 SC 692; Supreme Court, Suo Motu Case No. 1 of 2022, judgment of 7 April 2022.)

Evaluation: activism, restraint and the 26th Amendment

The judiciary moved from legitimising coups to rejecting them, especially after the lawyers' movement. However, extensive use of suo motu powers and judgments affecting elected governments led to accusations of judicial overreach. In response, Parliament passed the Supreme Court (Practice and Procedure) Act 2023 and the 26th Amendment (2024), which created constitutional benches and changed the method of appointing the Chief Justice, a development some see as restoring balance and others as weakening judicial independence.

Conclusion

Alexander Hamilton wrote in The Federalist No. 78 (1788) that the judiciary, having "neither force nor will, but merely judgment," would be "the least dangerous" branch, and its strength lies in its legitimacy. The judiciary's role in Pakistan's constitutional development has been both harmful and healing: harmful when it validated dissolutions and coups through the doctrine of necessity, healing when it declared martial law illegal, protected rights and buried the doctrine in 2009. A judiciary that is independent yet restrained, firm against extra-constitutional action and respectful of elected institutions, remains essential for Pakistan's constitutional future.