Opinion: Government and judiciary in Pakistan. Picture shows olice fire tear gas to disperse supporters of Imran Khan protesting against the arrest of their leader. [Photo by Hussain Ali/Pacific Press/Sipa USA. Credit: Sipa US/Alamy Live]9th May, 2023, Peshawar, Pakistan: Police fire tear gas to disperse supporters of Imran Khan protesting against the arrest of their leader. [Photo by Hussain Ali/Pacific Press/Sipa USA. Credit: Sipa US/Alamy Live News]

[This article is from The Round Table: The Commonwealth Journal of International Affairs.]

Traditionally, there have been three centres of power in Pakistan: the military (a.k.a. GHQ), the judiciary and parliament. Unlike the normal balance of power in most democracies between the three organs of state, i.e. the executive, the judiciary and the legislature, Pakistanis use terms such as the armed forces, the deep state and the establishment, which trump all other pillars of the state.

The establishment may include either just the army or also the entire civil and military bureaucracy that have pensionable jobs and derive their power from the secure positions they enjoy in the power structure of the country. Since 1947, there has been an imbalance in the share of power by the various stakeholders. Initially, the civil bureaucracy that Chaudhry Muhammad Ali and Malik Ghulam Muhammad were leading had an upper hand. When Governor General Ghulam Muhammad dismissed the second Prime Minister Khawja Nazimuddin in 1953 and then dissolved the first Constituent Assembly in 1954, the superior judiciary sided with the bureaucracy and validated the dissolution.

Since then, there has been no love lost between the judiciary and the legislature or the civilian governments. After the imposition of the first country-wide martial law and abrogation of the first constitution in 1958, once again the superior judiciary used a dubious ‘doctrine of state necessity’ to legitimise the defenestration of parliament. The first military dictator in Pakistan, General Ayub Khan, who also became a self-appointed field marshal and president, never faced any challenge from the judiciary. His 11-year rule was marred by election rigging, horse trading and blatant violation of human rights, but the judiciary looked the other way.

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In 1969, when General Ayub Khan violated his own constitution and handed over power to the new army chief, General Yahya Khan, rather than to the speaker of the assembly, the judiciary did not utter a word of opposition to this act. Having become the second dictator, General Yahya Khan refused to hand over power to the winning party in the 1970 general elections and launched a brutal military action, but again the superior judiciary was not bothered by this. In East Pakistan millions of people became refugees as a result of military atrocities, but the Supreme Court of Pakistan never issued a single injunction or order against the military dictatorship of General Yahya Khan.

After the third imposition of martial law in 1977, General Zia used the judiciary to stage the judicial murder of Zulfiqar Ali Bhutto and most of the top judges acquiesced in the action. Another 11-year dictatorship had the full support of the judiciary, which never questioned any actions by the usurper. Interestingly, even after the restoration of limited democracy in 1988, the judiciary continued to validate dissolutions of parliament. From 1988 to 1999, as many as five elected governments were sent packing: in 1988, 1990, 1993, 1996 and 1999. The judiciary validated all dismissals apart from just one in 1993, when Chief Justice Naseem Hasan Shah restored the first Nawaz Sharif government.

In the twenty-first century, the judiciary continued its anti-democratic role by first validating the military takeover by General Musharraf and then creating all sorts of problems for nearly all civilian governments in the country. The only chief justice who refused to obey the order of General Musharraf was Justice Iftikhar Chaudhry, but he also did not take any action directly against the dictator. Instead, he posed a major challenge to the PPP government from 2008 to 2013. Justice Chaudhry forced the parliament to pass the 19th constitutional amendment, which gave immense powers to the office of the chief justice.

Justice Chaudhry ordered the removal of an elected Prime Minister, Yusuf Raza Gilani, on charges of contempt of court in 2012. Then, from 2016, Chief Justice Saqib Nisar was staunchly against the Nawaz Sharif government and made sure through his actions and decisions that the Sharif family and the PML-N did not get any relief from the courts. In the last seven years since 2016 there have been four chief justices and all of them have toed the line of the security establishment that the army chief, General Qamar Bajwa, was leading to support Imran Khan till 2022.

Judicial activism has become a regular practice now, with which the current Chief Justice Umar Ata Bandial has repeatedly violated the best practices of judicial conduct. He has been constantly forming benches of like-minded judges and excluding all those senior judges who dared to differ with him. Chief Justice Bandial had not allowed the most senior judge, Justice Qazi Faez Isa, on any bench since February 2023 when the chief justice assumed office.

Justice Bandial’s support for Imran Khan has been pretty clear and in May 2023, when the Shehbaz Sharif government tried to set up a commission to investigate audio leaks involving the mother-in-law of the chief justice, he issued an order against the commission. So far, the superior judiciary in Pakistan has been extremely partial and has worked against nearly all democratic governments.

Naazir Mahmood is an Analyst, Columnist, & Consultant, Development and Education in Pakistan.