The Judiciary as a Part of Juridico-Bureaucratic State Structure
Just like the civil-military bureaucracy, judiciary in Pakistan not only had a colonial legacy but also participated in the neo-colonial formations and political developments after independence.
After partition, there were English judges and the foremost jurists in the leading cases in the 1950s were either British lawyers hired by the Pakistani government or local barristers trained at Lincoln’s Inn.[234] Both judges and jurists continued to cite Privy Council decisions as “the expositions of the law by one of the highest judicial tribunals in the world composed of distinguished men”.[235] As a result, most cases cited were from the United Kingdom or the United States, English continued to be the language of courts and judgments, and as in the English tradition, the judges would refer to one another as “my brother” and counsel would refer to the judges ‘my Lord’. The “English concept of justice remained the dominant factors in Pakistan’s higher judiciary, and indeed these are the part of the Pakistani culture”.[236] It took 50 years for Pakistan to abandon the wigs of English justices and the phrase ‘your Lordship’. Indeed, barristers are still required to say ‘my Lord’ when addressing the court.[237] The traditions were so powerful that all the related political activities were also understood as “mere motions in a foreign mode,”[238] as we will see.Thejudiciary itself arrived in two streams—from the Indian Civil Services (ICS, officially known as Imperial Civil Services),[239] and the Lincoln Inn Barristers.[240] The close entanglement of the judiciary and bureaucracy in Pakistan’s early years was greater than in any other developing country.[241] Civil Servants could, and frequently did, opt for judicial service. In 1961, eight officers of the Civil Service of Pakistan (CSP) were justices of the courts, namely M.
Shahbuddin, Sir George Constantine, A.R. Cornelius, S.A. Rehman J. Ortcheson, M.B. Ahmad, A.R. Khan, M.R. Kayani, Sheikh Anwar-ul-Haq. In 1964, there were 65 such members. Three hundred and sixty-six officers of the Civil Services were presided over by Chief Justices Kayani of Lahore High Court, followed by Supreme Court Chief Justices S.A. Rahaman and M. Shahabuddin. The judiciary also headed all administrative reform commissions.[242]By 1958, the year of coup, the hegemonic shift in Pakistan’s politics from the U.K. to the U.S. was happening. At the same time new deepening relation of judiciary with the establishment and the U.S. were developing. This culminated in a close relation of Ralph Braibant and Cornelius CJ.[243] Braibanti became the Chief Advisor and Professor of the Civil Services Academy in 1960, Lahore. At the time he was on leave from Duke University and was on contract with United States Agency for International Development. I consider him the main architect of the liberal legal and administrative project to this date. By the 1960s, the judiciary became influenced by the U.S. legal tradition.
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