A brief history of Pakistan provides numerous examples of times when the judiciary played second fiddle to the forces that governed the state at the time. This brief history can perhaps begin to educate us on what went wrong in the past and what we can learn from our mistakes.
After partition in 1947, the need for state machinery was conspicuous by its absence. Less than fifty-percent of the vacancies in the judicial and executive branches of the government were occupied and most state departments remained under employed. The loss of Quaid-e-Azam and Liaquat Ali Khan further estranged any hope for ‘state-building’. At this time, a stable political system was not yet established and as expected, a political vacuum set the stage for a tussle over power between the legislature and the executive. This proved disastrous for the growth of government institutions, especially the judiciary, which was merely used as a tool to exploit intergovernmental disputes between the executive and legislative authorities. As a result, the constitution – a document, supposedly safeguarded by the judiciary – was reduced in its worth to facilitate power bargains.
Later, in 1954, because of lack of consensus between parliamentarians over the contents of the constitution, Governor Ghulam Muhammad dismissed the entire constituent assembly, and the Supreme Court upheld his decision. The power of the executive remained at its apex during Ayub’s tenure: a large number of former political leaders were barred from competing elections and more importantly, the national assembly no longer had the power to remove a government it didn’t have confidence in. Again, the judiciary complied.
In 1973, Bhutto promulgated a new constitution and became the ‘all powerful’ Prime Minister. He prescribed 114 articles of power to the federation; the legislature grew in size and the power of the executive branch was reduced. Three hundred and thirty three senior bureaucrats were dismissed on false charges.
In 1985, General Zia shifted power once more: he made the 8th constitutional amendment, changing Pakistan’s political system from parliamentary to semi-presidential. The President was given the right to dissolve the National Assembly. Yet again, the judiciary complied.
And then the Nawaz government undid the 8th amendment in 1997. The 13th amendment removed article 58(2)(b) from the constitution and withdrew the President’s right to dissolve the National Assembly. Soon afterwards, the 14th amendment was passed which stripped the party of its power to remove its leader in case of ‘no confidence’. Nawaz Sharif became a parliamentary dictator – there were no checks and balances left on the Prime Minister.
In 2003, the 13th amendment was reversed. The President regained his power to dismiss the national assembly, but this time around it could only happen if approved by the Supreme Court. After years of misuse and neglect it appeared as if the judiciary was given its due power, but it was not. The fact that forty percent of judges refused to take the new oath at the time when Musharraf became President only further reveals judicial accountability to the ruling elite.
Both, military as well as civilian governments of Pakistan, have almost invariably maneuvered the judiciary to purchase legitimacy for their unlawful actions. Under borrowed legitimacy, military governments justify martial law at the cost of losing upright superior court Judges. Conversely, civilian governments have often used their clout to meet political exigencies and centralize power. Hence, the need for greater judicial independence cannot be denied.
However, there is little or no consensus among scholars on the level of independence that should be prescribed to the judiciary. Given the obvious drawbacks of absolute independence, some scholars favor a minimum level of accountability to counter unfettered independence; accountability that seems more natural than imposed. This includes the implicit accountability judges have to the public: all courts are open and all judgments public, and therefore vulnerable to public scrutiny. Unfortunately, in Pakistan, the state system provides a sharp contrast to ideological theory. Here, judges known for unpopular judgments are marginalized and left with abridged tenures. Hence, accountability to political or military influence leaves little room for sound judgment.
Despite recent efforts to make the judiciary more independent, justice is delivered at the same abysmal rate. Musharraf’s regime scrapped the office of District Magistrate to give the judiciary more independence. Similarly, the police too was allowed greater independence – the DPO is no longer supervised by or accountable to any part of the local civil service. Even after these measures, the judiciary and executive remain closely linked. To put it simply, the police will always complement the judiciary; it is the only institution that brings criminals to justice. Therefore, police reforms that are expected to decrease accountability and exacerbate corruption will adversely affect the judiciary’s capacity to provide justice.
And now the military courts that must be established ‘at any cost’. Yet another attack on our poor old judiciary. Yet another example of finding shortcuts to problems that will haunt us in the long haul.

The writer is a communications consultant based in Lahore.