ALREADY APPARENT FROM the two preceding chapters is the centrality of Pakistan’s higher judiciary for maintaining a bare subsistence of legality through great upheavals.
The cost of doing this has, however, been a loss of public prestige for a judiciary perceived as compromising on basic principles of judicial independence. This chapter first details the structure and powers of the judicial system as laid out in the Constitution of 1973.
There are then two concerns instrumental to the organisation of the sections that follow. The first is to address the judiciary’s ambit of action or its jurisdiction within de facto and de jure constitutionalism. The second concern is to understand the criteria by which judicial independence has been measured historically and leading to an increasingly narrow preoccupation with the processes for judicial appointment.The judicial response to the disruption of formal constitutionalism in 1977 provides some indication of the challenges faced when a coup is staged and an extra-constitutional legality is being delivered. A detailed examination of the judicial role in General Zia’s ability to retain power is undertaken along with a description of the blatant illegalities that preceded the execution of Zulfiqar Bhutto under his regime. When thereafter freed from some of the fetters of the Zia regime, members of the higher judiciary set out on a restorative path, garnering public prestige while also seeking to redress a range of social problems that had historically fallen outside the system of justice. By creative adaptation of a programme of social reform through public interest litigation and also in more vigilant enforcement of fundamental rights the judiciary charted a fairly novel role for itself in the decade of the 1990s. This path was interrupted by another military coup in 1999, also subsequently validated by the Supreme Court. However, that the parliamentary system was restored by 2002 was amongst the conditions that allowed for a reinvigoration of judicial review practices that sought more intensively to redress rights violations and earned the Supreme Court under Chief Justice Iftikhar Chaudhry the reputation of being the most activist bench to date. The judiciary’s search for legitimacy, from this point forward, was to be ever more intricately intertwined with the second major concern of this chapter, the establishment of judicial independence.
The suspension of Chaudhry in 2007 by President Musharraf was a flagrant breach of the principle of judicial independence, enshrined as an aspiration as far back as 1949 in the Objectives Resolution. However, an equally long history of partisan and politicised decision-making in reference to judicial appointment, tenure and removal from service has encumbered its realisation. All of this was indicted in the protest movement that would last for nearly two years before Chaudhry’s restoration.
Thereafter, the striving for independence has taken on additional expressions. It has marked the field of constitutional interpretation both in the definition of a broader jurisdictional ambit and a more aggressive posture towards policing other branches of government. In the context that Musharraf had been removed and a fuller flourishing of democracy was at hand, certain actions of the court in this era incited a battle for primacy between the principles of rule of law and the striving for democracy. This was counterbalanced at times by a marked reticence to seek inspiration from transplanted doctrines of constitutional interpretation by the Supreme Court. Overwhelming in the recent record of judicial assertion is its keen oversight over the judicial appointments process; in many ways, this interest indicates that the higher judiciary has seemed to identify the judicial appointment process as the emblematic feature of judicial independence.
I.