The three fundamental pillars of a modern democratic state are the administration, legislature, and judiciary. If we look at the history of the evolution of democracy, it becomes clear that after the Magna Carta agreement, a modern democratic state was established in Britain, and thus the domains of the administration, legislature (Parliament), and judiciary were defined through an evolutionary process. Britain does not have a written constitution, but its democratic traditions are so strong that these three pillars operate within their respective boundaries.
In the Indian subcontinent, the British laid the foundation of a modern state, establishing an administrative and judicial structure in the 19th century, alongside a modern education system. The British government treated Indians as subjects, which is why the courts were primarily established to assist the administration. The history of British India shows that during that period, the courts rarely provided relief to Indians demanding freedom, though they remained impartial in resolving disputes between Indian citizens. However, the judiciary’s history also reveals that some judges used judicial activism.
When a new country (Pakistan) was created in 1947, the Muslim bureaucracy that had run British India took over the administration of the new state. Ghulam Muhammad and Chaudhry Muhammad Ali were considered the leaders of this bureaucracy, and they viewed the judiciary as part of the administration. This is why senior judge of the Sindh Chief Court, Justice Tayyab Ali, was overlooked, and Justice Rashid was made the country’s first Chief Justice. When Justice Rashid retired, the Chief Justice of East Bengal, Justice Akram, became the senior-most judge of the Supreme Court, but Governor-General Ghulam Muhammad was unwilling to give such an important position to a Bengali.
Ghulam Muhammad wrote to the Queen of England, requesting an English judge be sent. Justice Akram was unwilling to serve alongside a British judge, so he resigned from the Chief Justice position. Ghulam Muhammad appointed Justice Munir, a junior judge, as the Chief Justice of the Supreme Court. Justice Munir introduced the “Doctrine of Necessity,” provided legal justification for the dissolution of the Constituent Assembly by the Governor-General, and later validated General Ayub Khan’s martial law. However, during the same period, Chief Justice of the West Pakistan High Court, Rustam Kayani, issued landmark decisions to protect political prisoners from General Ayub Khan’s government, challenging the dominance of the administration.
Ayub Khan’s government did not send Justice Kayani to the Supreme Court. It is said that during Ayub Khan’s rule, Bengali judges from East Pakistan made significant rulings upholding human rights, while West Pakistan judges sided with the administration. Renowned human rights activist Asma Jilani, later known as Asma Jahangir after marriage, challenged the detention orders of her father, Malik Ghulam Jilani, under General Yahya Khan’s government. At that time, Justice Hamoodur Rahman was the Chief Justice of the Supreme Court. After the formation of Bangladesh and the end of Yahya Khan’s regime, the Supreme Court declared Yahya Khan’s martial law unconstitutional.
When the Pakistan People’s Party (PPP) government came to power and all political parties in Parliament unanimously drafted the 1973 Constitution, it guaranteed judicial independence. However, even during Prime Minister Zulfikar Ali Bhutto’s tenure, the judiciary continued to cooperate with the administration. When Justice Najm al-Arfeen of the Sindh High Court made a few independent rulings, he was forced to resign and later became a member of the National Assembly from the PPP. When General Zia-ul-Haq took power, Begum Nusrat Bhutto filed a petition in the Supreme Court challenging martial law. Zia’s regime removed Chief Justice Yaqub Khan through a martial law order and appointed Justice Anwar-ul-Haq as Chief Justice. Justice Anwar-ul-Haq followed in the footsteps of Justice Munir, endorsing the “Doctrine of Necessity” and legitimizing General Zia’s rule. He also upheld the Lahore High Court’s death sentence for former Prime Minister Zulfikar Ali Bhutto. Last year, the Supreme Court, in a reference decision, stated that Bhutto did not receive a fair trial.
In Bhutto’s case, former Lahore High Court Chief Justice Mushtaq violated all the traditions of judicial independence. When General Zia postponed elections indefinitely and announced the implementation of an Islamic system, several judges of the Supreme Court and High Court, including Justice Dorab Patel, Justice Fakhruddin G. Ebrahim, and Justice Mari, were dismissed. After Zia dismissed Mohammad Khan Junejo’s government and later died in a plane crash, Junejo challenged his dismissal in the Supreme Court. While the court declared Zia’s actions unconstitutional, it did not reinstate Junejo’s government.
When President Ghulam Ishaq Khan dismissed Benazir Bhutto’s government, the Supreme Court, led by Chief Justice Naseem Hassan Shah, upheld the dismissal. However, when Ghulam Ishaq Khan dismissed Prime Minister Nawaz Sharif’s government, the Supreme Court ruled it unconstitutional, marking the judiciary’s first ruling against the administration. During Benazir Bhutto’s second term as Prime Minister, she appointed Justice Sajjad Ali Shah, a junior judge, as Chief Justice of the Supreme Court. The full bench of the Supreme Court gave a landmark ruling in the Al-Jihad Trust case, affirming judicial independence.
This ruling established that the senior-most judge should be appointed Chief Justice of the Supreme Court. While it was agreed that this rule would not apply to Justice Sajjad Ali Shah, when he summoned Prime Minister Nawaz Sharif in a contempt of court case and the risk arose that Nawaz could be disqualified for contempt, Muslim League workers stormed the Supreme Court. The judges of the Supreme Court revolted against their Chief Justice Sajjad Ali Shah, and Justice Saeed-uz-Zaman Siddiqui, the senior-most judge, was appointed Chief Justice.