Judiciary in Pakistan:
A Quest for Independence
Nasim Hasan Shah
Throughout the fifty year history of Pakistan, the path of the judiciary has been strewn with jolts and jerks. Out of the forty-nine years of independence, fifteen have been spent under martial law. Martial law was first imposed in 1958 by President Iskander Mirza and it was continued for nearly four years by Field Marshall Mohammad Ayub Khan. On May 25, 1969, General Agha Mohammad Yahya Khan again imposed martial law. This period was extended by Zulfikar Ali Bhutto and lasted four years all together. On July 5, 1977 General Mohammad Zia ul-Haq imposed yet another period of martial law. This period lasted eight and one-half years. During these periods, security of tenure for judges, one of the pivotal guarantees necessary for realization of the ideal of an independent judiciary, was practically non-existent. Judges were liable to removal or compulsory retirement at the whim of the martial law authorities. The authorities were facilitated by both a lack of public concern and an absence of an entrenched tradition of upholding the independence of the judiciary in Pakistan. Both problems were painfully exhibited in 1981 when a large number of judges were arbitrarily retired under the Provisional Constitutional Order 1 and these actions resulted in no public outcry. Recent decisions made by the judiciary can be interpreted as an attempt to restore a balance to the branches of the Pakistani government by reversing the actions taken to undermine the judiciary.
A discussion of the background which led to the response taken by the judiciary is not without interest. After the lifting of the last martial law on December 30, 1985, the courts delivered a series of judgments which attempted to transform the country from a military-oriented authoritarian regime into a people-oriented de-