IMPACT OF ARMY ON INDEPENDENCE OF THE

JUDICIARY IN PAKISTAN:

Amanullah Shah
Law College, Gomal University, Dera Ismail Khan, NWFP, Pakistan

ABSTRACT:
Th e Pakistan A r my h as r u led over Pak istan for mo r e th an h a lf of its to tal 62 ye ar s
h isto r y. Pakistan had been subj ected f iv e times to ex tr a-constitu tional emerg ency or
ma rtial law reg ime s, wh en th e constitu tion was eith er abrog a ted or par tly or who lly
s usp ended . L ik e o the r ins titu tion s of the s ta te , j u d ic i ar y a l so suf f ere d a lo t u n d er
mi l i t a r y d ic t a t o r s . T h is p ap e r s tu d ies th e d a ma g e d o n e to the j u d ic i a r y p ar t icu la r to i ts
ind epend ence during military regime s. Apart fro m curtailing the jurisd ic tion of th e
cour ts , arb itr ar y r e moval of th e judg es, b latant in terf er ence in the pro ceed ings of th e
courts , damag ing the cred ib ility of th e cour t, th e military d ictato rs also in troduced
d e tr ime n ta l c hang es in th e cons titu tion a l s truc tur e of the jud ic iar y.

Introduction:
The constitutional history of Provisional Constitution Orders.
Pakistan is full of constitutional Martial law was declared in
eventualities as well as of extra- Pakistan in 1958, 1969, 1977,
constitutional military 1999 and 2007. In the last two
adventurism. Pakistan has instances, the military initiated
practiced one provisional their extra-ordinary regime not by
constitution, three permanent a proclamation of martial law, but
constitutions and one interim through “proclamation of
constitution. Pakistan had been emergency.” Thus military ruled
subjected five times to extra- over Pakistan for more than half
constitutional emergency or of its total 62 years history.
martial law regimes, when the
constitution was either abrogated Like other institutions of the
or partly or wholly suspended. state, judiciary also suffered a lot
The functions of government were under military dictators. Each
being carried on under Laws martial law regime clipped the
(Continuance in Force) Orders or wings of the judiciary by
curtailing its jurisdictions, not inviting them to take the new
assaulted the independence of the oath. General Musharraf followed
judiciary by arbitrary removal of the foot prints of General Zia. He
the independent judges and asked the judges to take new oath
degraded the dignity of the and arbitrarily removed unwanted
judiciary by making open judges. He went forward and left
interference in the proceedings of far behind all willful acts of
the court. Every successive previous martial law regimes
martial law governments while undermining the judicial
dealing with judiciary followed independence. He kept the Chief
the foot prints of its predecessors Justice of Pakistan under house
and adopted the already tested arrest in 2000 on the day when
methods of subjugating judiciary new oath was being given to the
with more damaging and judges. Again on November 3,
aggressive way. In addition to 2007, General Musharraf imposed
adopting old practices each of the fifth martial law under
military regimes, added new trend nomenclature of emergency,
of more harmful and more sacked the judges of the superior
detrimental act for controlling courts and kept them under house
judiciary. General Ayub Khan, arrest for more than two weeks.
the first military dictator started The deposed Chief Justice of
getting interview of the judges of Pakistan, Justice Iftikhar
High Court. General Yahya Khan remained under house arrest for
harassed judges by making the period of more than five
scrutiny of the assets of the months.
judges of the superior judiciary.
General Zia added new thing by Apart from curtailing the
asking judges to take a fresh oath jurisdiction of the courts,
under Martial law. He introduced arbitrary removal of the judges,
a new method of arbitrary blatant interference in the
removal of the judges by simply proceedings of the courts,
damaging the credibility of the challenge the military
court, the military dictators also government. Under all martial
introduced detrimental changes in law regimes all courts including
the constitutional structure of the Supreme Court and High Courts
judiciary. All these issues are were allowed to exercise their
examined in this paper. respective powers and
jurisdictions provided that no
1: Powers of the Courts under court or tribunal would have the
Martial Law Regimes: power to pass any order/judgment
against military dictator. No court
Every martial law regime could call in question the
abrogated or suspended the proclamation of martial law or
constitution of Pakistan and extra constitutional emergency or
promulgated new legal order any order made in pursuance of
either under the title of Laws the proclamation.
(Continuance in Force) Order or
under the name of Provisional During first three martial law
Constitution Order (PCO). All regimes of 1958, 1969 and 1977,
military dictators declared that military courts of criminal
the country would be run as much jurisdiction were set up. These
as possible under the abrogated or courts were parallel to the
suspended constitution- existing courts in the country.
paradoxically the political basis The military courts were
for the constitution was not empowered to punish any person
considered viable but its for the violation of martial law
administrative rules were regulations or orders and also for
adequate (Newberg, 1995). offences under ordinary laws.
Unlike the other organ of the Appeals against any decision or
state i.e. legislature, the judiciary order of the military courts were
was allowed to function but was not allowed to any court
deprived of the power to
including Supreme Court and judgment that the superior courts
High Courts. continued to have the power of
judicial review to judge the
Whenever the Courts reviewed validity of any act or action of
the actions taken by martial law martial law authorities, if
regime or questioned military challenged in the light of the
judgments and occasionally principles underlying the law of
overturned military convictions- necessity. The superior courts
that is, they acted like real courts took Justice Anwar-ul-Haq at his
rather than puppet tribunals - the words and started scrutinizing
military regimes reacted by regime’s actions, particularly
restricting the powers of the decisions of military courts. The
courts and effectively curbing the High Courts tried to establish
independence of the judiciary. In their right to review regime’s
1969 Lahore High Court ruled in actions, though their rulings were
a case (Mir Hassan and another creative and careful (Newberg,
Vs. The State) that courts could 1995). The judiciary was cautious
operate without obstruction. while exercising the power of
General Yahya’s martial law judicial review. Martial law
government reacted by regulations and orders were not
promulgating the Courts generally touched in exercise of
(Removal of Doubts) Order 1969, judicial review. The judges of
just to remind the judges the High Courts interfered with the
limitations of their powers. In the sentences of the military courts
Nusrat Bhutto’s case, the and detention cases under martial
Supreme Court while giving law regulations, when there was
validity to General Zia’s martial either no evidence or evidence of
of 1977 under doctrine of State independent nature was not there
Necessity retained the power of (Khan, 2001).
judicial review. Chief Justice
Anwer-ul-Haq held in the said
The judges’ optimism proved the High Courts from reviewing
wrong. General Zia tightened the judgments or sentences passed
restriction on the superior courts by military courts or tribunals.
in October 1979, by inserting a The intriguing aspect of this
new Article 212-A in the order was that it removed the
constitution. By this amendment High Courts’ jurisdiction with
the power of judicial review, retrospective effect.
reserved for the superior courts
by the Supreme Court in the This amendment was challenged
judgment of Begum Nusrat in Sindh High Court and
Bhutto’s case, was completely Baluchistan High Court. Sindh
nullified. The High Courts High Court by majority opinion
continued to entertain petition declared it valid (Yaqoob Ali Vs.
even challenging the validity of summary Military Court, 1980)
the constitutional amendments in .In July 1980, the Baluchistan
the parameter of the Supreme High Court, staying the execution
Court judgment in Begum Nusrat of death sentences passed by a
Bhutto’s case. In May 1980, special military court, ruled in a
General Zia further curbed the case (Suleman Vs. President
powers of High Court available Special Military Court, 1980) that
under Article 199 of the the High Courts could still decide
constitution through Presidential cases challenging provisions of
Order No.1 of 1980, promulgated military courts. It then declared
on May 27, 1980. This that the two latest constitutional
amendment order restricted the amendments to Articles 212 and
“writ jurisdiction” of the High 199 (passed on October 16 1979
Courts and barred them from and May 27 1980 respectively)
making an order relating to the were illegal. It described them
validity or effect of any martial drastic and fundamental and
law regulation or any martial law outside the mandate of the
order. The order also prohibited military government ruling that
these amendments failed to pass Supreme Court in Begum Nusrat
the test of necessity laid down in Bhutto’s case. It purported to
the Supreme Court’s judgment of validate every thing done by
Begum Nusrat Bhutto’s case. Zia’s regime since its coup in
1977 and such validation was not
The government filed an appeal in to be called into question in any
the Supreme Court against the court on any ground whatsoever.
judgment of Baluchistan High The courts were deprived of
Court. The appeal was pending jurisdiction over members of the
and it was very difficult for armed forces and any judicial
Supreme Court to over rule the order concerning them was null
findings of the Baluchistan High and void. A High Court could not
Court. General Zia who was release on bail a person detained
known as a ‘barbarian military under a military, or against whom
tyrant’ viewed judiciary as an a complained had been made in
instrument of the state which any court/tribunal or convicted
should facilitate the exercise of under military law or against
government’s authority rather whom a case had been registered
than restrict it (Waseem, 1989). in a police station. The PCO, in
In one stroke, he effectively short, effectively extinguished
extinguished judicial powers by the jurisdiction of the High
promulgating Provisional Courts. To punish and embarrass
Constitution Order (PCO) 1981. them further, superior court
Judgments against military rule judges were required to take a
led to confrontation with the new oath to uphold the PCO and
military that the courts could not not all were invited to do so. The
win; the PCO 1981 was General PCO transformed martial regime
Zia’s victory proclamation into a martial state (Newberg,
(Newberg, 1995). The PCO put a 1995). Blatant interference on
formal end to the necessity such a massive scale in the
regime as sanctioned by the composition, jurisdiction and
independence of the judiciary was Judiciary by appointing the Chief
unprecedented in the history of Justices of the High Courts as
Pakistan (Maluka, 1995). A acting governors of their
former Chief Justice of Pakistan, respective provinces. General Zia
Justice Cornelius, commenting on got the certificate of validity of
the unfortunate episode of PCO his martial law from the
1981, called it “the rape of the judiciary. He eliminated Zulfiqar
judiciary” (Khan, 2001). Ali Bhutto through judicial
process. All these favors and
The military governments, concessions could not stop
besides depriving the courts from General Zia from undermining the
its judicial powers provided by institution of judiciary. General
the constitution, caused Zia not only restricted the
detrimental changes in the judicial powers of the courts and
structure of the superior arbitrarily removed unwanted
judiciary. judges; he also introduced
fundamental changes in the
2: Structural Innovation in the
Institution of Judiciary under judiciary bearing too much
Martial Law Regimes. detrimental effects on the

As stated earlier, General Zia had independence of judiciary even

imposed third martial law in the after martial law era.

country on July 5, 1977. The most

extraordinary thing about General The structural innovations in the

Zia’s regime was that it appeared judiciary were made through

to have had the blessings of the martial law orders. General Zia

Judiciary right from the was empowered by the Supreme

beginning (Samdani, 2002). Court in the judgment of Begum

General Zia consulted the Chief Nusrat Bhutto’s case to amend the

Justice of Pakistan on almost all constitution. He exploited this

important legal issues. He unique authority by making

secured the cooperation of the amendments in the constitution

whatever he liked. To underline theology) were included as
its Islamization program, General members of the court by
Zia’s regime organized a new amending the constitution. This
constitutional court, namely the reconstituted court reviewed the
Federal Shariat Court, to review judgment of Justice Salahuddin
the laws in Pakistan whether they Ahmed and set it aside.
were in conformity with the
injunctions of Islam and to By creating the Federal Shariat
declare any law invalid if found court, General Zia not only
repugnant to the injunctions of showed his lack of confidence in
Islam laid down in the Holy the superior judiciary, he
Quran and the Sunnah of the Holy undermined the constitutional
Prophet. Ironically, when the position of the Chief Justice of
Federal Shariat Court judged the Pakistan also. A judge of the
1963 Press and Publication Order superior courts is to be appointed
and the 1952 Security of Pakistan after consultation with the
Act incompatible with the Federal Shariat Court. As
principles of Islam, the regime discussed in the preceding
appealed to the Supreme Court chapters, a judge of the Supreme
against the decision because it Court and the High Court can be
threatened its political programs. removed from service only
In another case when the Federal through the procedure provided in
Shariat Court held that stoning to Article 209 of the constitution.
death was not supported by On the contrary, a judge of the
Islamic law, the Chief Justice of Federal Shariat court is appointed
the Federal Shariat Court, Justice for a period of three years
Salahuddin Ahmed was extendable by the President and
terminated and the court was may be removed any time by the
reconstituted. New Chief Justice President without showing any
was appointed and three Ulema reason (Article 203C of the
(i.e. scholars in Islamic Law and Constitution of Pakistan). It is
very strange that the service of a provided by the Article, certain
judge of the Federal Shariat Court detrimental provisions were
seems to be the most unsecured inserted in the constitution by
service in Pakistan. Every judge General Zia which allow removal
of the Federal Shariat Court of the judges otherwise. A judge
remains under the pressure of the of a High Court may be
executive. The job of the Federal transferred to another High Court
Shariat Court is to examine under Article 200 and may be
whether the existing laws of the appointed as a judge of the
country are against Islamic Federal Shariat Court under
injunctions and if they are, to Article 203-C. These articles
declare them void. It appears that further provide that if any judge
General Zia wanted interpretation does not accept such transfer or
of Islamic injunctions as he appointment, he will cease to be a
desired. Such tremendous powers judge and be deemed as retired.
of the appointment and removal Various governments have abused
of the judges of the Federal these provisions of the
Shariat Court make a mockery of constitution either for getting ride
the independence of the judiciary. of unwanted judges or for
harassment and punishment of
General Zia’s regime, besides independent judges.
creating a new court, made
substantial changes in the All these structural changes are
constitutional provisions relating detrimental to the independence
to the Superior Courts. In spite of of the judiciary. These changes
the protection of the services of were incorporated in the
the judges under Article 209(7) of constitution at the time of its
the constitution which declares in revival in 1985. The unfortunate
unambiguous words that no judge thing is that the parliament which
of the Supreme Court or a High came into existence as a result of
Court shall be removed except as party less election, ratified,
though under coercion, all the in a High Court, in addition to the
outrageous measures of General Chief Justice of Pakistan, the
Zia’s regime by passing the Chief Justice of the concerned
Eighth Constitutional High Court and the Governor of
Amendment. Thus these the concerned Province are to be
detrimental steps were made consulted too. The Chief Justice
permanent provisions of the of Pakistan is appointed by the
constitution which are still President and the Chief Justice of
formidable blockades in the way a High Court is appointed by him
of achieving independence of the after consultation with Chief
judiciary in Pakistan. Justice of Pakistan and the
Governor of the concerned
3: Appointment of the Judges province.
of the Superior Courts during
Martial
Law Regimes: Every government in Pakistan
whether civilian executive or
Pakistan, in its very first
military dictators, has repeatedly
constitution in 1956, adopted the
manipulated the system of
system of judicial appointment
appointment of judges and made
prevalent during the time of
appointments on personal or
British India. The same system
political consideration. In very
has been retained in all
few cases of judicial
constitutions of Pakistan. All
appointments, merit seemed to be
appointments of Judges in the
adopted. The appointments of the
superior judiciary are made by
judges in the superior courts
the executive, i.e. by the
under martial law regimes had
President of Pakistan after
been more arbitrary and
consultation with the Chief
outrageous. The judicial
Justice of Pakistan in case the
appointment without merit is one
judge is appointed in the Supreme
of the major factors undermining
Court and if a judge is appointed
the independence of the judiciary.
 According to a former judge of
The direct and blatant assault on Indian Supreme Court, persons
the independence of judiciary was aligned with some political party
first made by the first military are ill-fitted to occupy seats of
dictator, General Ayub Khan who justice. In the eyes of many a
started, in gross violation of the committed judge is a
procedure provided by the contradiction in terms. Allegiance
constitution, the practice of to justice and commitment to a
interviewing the judges before partisan political ideology cannot
appointment to the High Courts. go together. A judge in order to
The governor of West Pakistan, be true to his office cannot
General Musa and the Federal law worship simultaneously at two
minister were to assist General shrines – the shrine of justice and
Ayub while interviewing judges the shrine of his favorite political
(Shah, 1997). The consultation of ideology (Khanna, 1985). But
the Chief Justice of Pakistan and Ayub Khan during his period
the Chief Justice of the concerned inducted active politicians into
High Court or their participation the superior judiciary. Manzoor
in the process of interview were Qadir who was holding the
not considered necessary. Even portfolio of Minister for Foreign
the interview was arbitrary and Affairs, in the cabinet of
subjective. One of the candidates President Ayub Khan, was
was not appointed merely because inducted as the Chief Justice of
his shoes were rather gaudy and High Court of West Pakistan in
did not go with his attire. Another 1962 (Mian, 2004). His
was rejected because he had appointment was resented by the
dropped an egg on his collar band bench and bar alike and due to
while having boiled egg at his the resentment he tendered his
breakfast before going for the resignation. In 1962 Ayub Khan
interview (Khan, 1997). appointed Afzal Cheema, deputy
speaker of the National Assembly
of Pakistan as judge of the West election against Zulfiqar Ali
Pakistan High Court, in return to Bhutto in 1970 (Babar, 1994).
his casting vote on a matter which
was highly sensitive for the The judiciary came under real
government in power. He trial during the period of General
appointed a brother of a Zia. In the beginning there was an
prominent politician, who helped understanding rather ‘a marriage
him in the presidential election of of convenience’ between the
1965, as a judge of West Pakistan martial law regime and the
High Court (Khan, 1999). superior judiciary. The Chief
Zakiuddin Pal, a member of the Justice of Lahore High Court
Central Executive of the Awami Moulvi Mushtaq Hussain, who
League and Hamood-ur-Rehman, had presided over the bench
an active worker of Pakistan which sentenced Bhutto to death,
Muslim League (PML) were was given free hand in the
appointed by Ayub Khan as appointment of judges. This
judges in the East Pakistan High opportunity was grossly misused
Court (Babar, 1994). and he got two batches of nine
judges each appointed in years
Not many judicial appointments 1978 and 1979. Baring a few of
were made during the second them who deserved such
martial law regime of General appointment on merit, others were
Yahya Khan because his period unknown lawyers without much
was short and army left recognition or reputation (Babar,
government after defeat at the 1994).
hand of Indian army in 1971, yet
still a PML politician, Javed General Zia also elevated Justice
Iqbal was appointed as a judge of S.A. Nusrat to the Supreme Court
Lahore High Court soon after he superseding many senior judges
(Javed Iqbal) contested and lost even though he had not served on
the high court bench for five
years as required by the judgments that Chief Justice of a
Constitution (Article 177) for High Court and Chief Justice of
purpose of such elevation. Pakistan will be appointed on the
General Zia started the practice basis of seniority in the absence
of appointing acting Chief of any strong and cogent reason
Justices of the High Courts and to the contrary to be recorded by
kept them acting because a the executive. The court also held
temporary judge can easily be that the opinion of the Chief
manipulated. During the Martial Justices, as constitutional
Law of General Zia the politician consultees, for appointment of
had lost influence in the matter of judges to the superior judiciary,
appointment of judges. Judges of was binding on the executive and
the superior court, serving or if the executive disagreed with
retired and all other influential the view of the Chief Justice of
men at that time having close Pakistan and the Chief Justice of
relationship with General Zia a High Court, it should record
exercised their powers and strong reasons to be justiciable.
influence, unfortunately, without But these verdicts could not stop
any regard to the dignity or the fourth military dictator
independence of the judiciary. General Pervez Musharraf from
misuse of the appointing powers.
Then came two important For example in June 1999, the
judgments of the Supreme Court Chief Justice of Lahore High
in the cases of Al-Jehad Trust Vs. Court Justice Rashid Aziz was
Federation of Pakistan (1996) and going on Ex-Pakistan leave, the
Malik Asad Ali V. Federation of Chief Justice of Pakistan
Pakistan (1998) as a check on the recommended the name of the
executive against the arbitrary most senior judge of Lahore High
use of its powers of appointing Court, Justice Falak Sher to be
judges in the superior judiciary. appointed as acting Chief Justice
The Supreme Court ruled in these of Lahore High Court. The
federal government appointed the matter/compliant against a judge
next senior judge in the violation of the Supreme Court or a High
of the Supreme Court rulings in Court. Such inquiry can be
Al-Jehad Trust Vs Federation of initiated on either of the
Pakistan and also against the allegations that he is guilty of
recommendation of the Chief misconduct or is incapable to
Justice of Pakistan. perform his duties. If the Council,
after conducting inquiry,
4. Removal of the Judges during recommends removal of a judge,
Army Regimes: the President may remove the
Services of the judges of the judge from his office.
superior courts are protected
under Article 209(7) of the It is very intriguing that removal
constitution of Pakistan which of the judges always took place
ensures that a judge of the during military governments. No
Supreme Court and of a High judge of the superior judiciary
Court shall not be removed from has ever been removed from
service except as provided by the office during civilian rule. The
said Article. Article 209 provides military dictators removed
the forum and the procedure for unwanted judges of the superior
the removal of a judge of the courts sometimes by adopting the
superior courts. This article constitutional procedure, other
constitutes the Supreme Judicial times by arbitrary orders. Only in
Council consisting of the Chief few cases the constitutional
Justice of Pakistan, two next procedure was adopted and a big
senior judges of the Supreme number of judges had arbitrarily
Court and two most senior Chief been removed from their offices.
Justices of the High Courts. The The first two military dictators
President of Pakistan may direct (i.e. General Ayub Khan and
the Supreme Judicial Council to General Yahya Khan) adopted the
conduct inquiry into the constitutional procedure, though
it was also questionable, for was suspended in March 2007 by
removal of judges. General Zia General Musharraf and kept under
started the practice of arbitrary house arrest up to five days.
removal of the judges of the Justice Iftikhar challenged his
superior courts and General suspension in the Supreme Court
Musharraf followed the foot and as a result of the court’s
prints of General Zia. ruling, he was restored. The most
shocking and painful episode is
More than 80 judges of the the PCO 2007 issued by General
superior courts including several Musharraf on November 3, 2007.
Chief Justices were arbitrarily Under PCO 2007 twelve judges of
removed under three Provisional the Supreme Court including the
Constitution Orders promulgated Chief Justice of Pakistan, Justice
by military dictators at three Iftikhar Muhammad Choudhry
different stages. Under PCO 1981 and more than four dozens judges
issued by General Zia four judges of the High Courts including two
of the Supreme Court including Chief Justices of two High Courts
the Chief Justice of Pakistan and were arbitrarily removed. All the
more than a dozen judges of High deposed judges of the superior
Courts including Chief Justice of courts were kept under house
Baluchistan High Court were arrest for several weeks. The
arbitrarily removed from their deposed Chief Justice Iftikhar
offices. The same process was Muhammad Chaudhry was under
repeated by General Musharraf in house arrest till March 21, 2008.
January 2000 where six judges of His detention came to an end
the Supreme Court including the when the New Prime Minister of
Chief Justice of Pakistan and Pakistan, Yusaf Raza Gilani
seven judges of the High Courts announced freedom for all
lost their offices. The Chief arrested judges after his election
Justice of Pakistan, Justice from the National Assembly as
Iftikhar Muhammad Choudhry Prime Minister of Pakistan.
 including amending the
The military regimes’ inroads in constitution. The same practice
the independence of the judiciary was repeated by General
were not limited to the arbitrary Musharraf in 1999 for getting
removal of judges or depriving legitimacy from the court for his
the courts of its jurisdictions, coup in October 1999. The Chief
they manipulated the judges to Justice of Pakistan along with
get favorable decisions from other five judges of the Supreme
them. Court was arbitrarily removed
when the military takeover was
5: Manipulation of the Courts challenged in the Supreme Court.
during Martial Law Regimes: General Musharraf made second
Maneuvering and manipulation of coup on November 3, 2007, this
the judges for getting favorable time, against the judiciary to stop
decisions have been practiced by the Supreme Court from giving a
all successive military judgment in the cases challenging
governments. The coup of his eligibility for the Presidential
General Zia was challenged in the election. Twelve out of seventeen
Supreme Court by Begum Nusrat judges of the Supreme Court were
Bhutto (wife of Z.A Bhutto). The arbitrarily removed. A new
Supreme Court entertained the Supreme Court of his choice was
petition and date was fixed for reconstituted and got the
hearing. The Chief Justice of eligibility verdict from it.
Pakistan, Justice Yaqoob Ali
Khan, could not remain in office Military dictators abused the
up to the hearing date of the judicial process for political
petition. The new Chief Justice persecution. General Zia used
Anwer-ul-Haq granted the court to eliminate his arch rival,
legitimacy certificate and Zulfiqar Ali Bhutto. It was
empowered General Zia to through manipulation of judges
perform all legislative measures that he had been able to wrest
from the court a death sentence interfered in the judicial
for Z. A. Bhutto (Anupama, proceedings of the courts and
1999). General Zia knew that tried to influence the decisions of
Justice Mushtaq was aggrieved the courts. When they failed to
and held a grudge against Bhutto. influence the independent judges,
Justice Mushtaq was appointed as then they harassed and
acting Chief Justice of Lahore intimidated such judges.
High Court. Justice Mushtaq had
made the selection of the bench 6: Army’s Interference in the
Judicial Proceedings and
for Bhutto’s trial much carefully
Harassment
(Khan, 2001). Under questionable of Independent Judges:
proceedings, Justice Mushtaq
The judicial history of Pakistan
convicted Bhutto and sentenced
provides a lot of instances of
him to death (Mahmood, 1992).
army’s interference in the judicial
The Supreme Court under another
proceedings of the court. Army of
annoyed Chief Justice Anwer-ul-
Pakistan did interfere in the
Haq rejected Bhutto’s appeal and
judicial affairs and successfully
endorsed the decision of Lahore
influenced the decisions of the
High Court. The Supreme Court
courts even during civilian
upheld the judgment of Lahore
governments, but its interference
High Court by majority opinion
during military regimes had been
of four to three. One of the
so blatant and outrageous that the
dissenting judges, Justice Patel
whole judicial process seemed to
admitted in his later life that he
be a mockery. For example, in
remained under heavy pressure
1977, during General Zia’s
while hearing Bhutto’s appeal
martial law, in the garb of
(Gauhar, 1998).
accountability, Tribunals were
constituted consisting of a Judge
Apart from manipulation of
of High Court and a Brigadier
judges to get favorable decisions
from army to decide the
in particular cases, army
allegations of misconduct against of court, but not sentenced for the
politicians and bureaucracy reason that he had already been
(Kadri, 1990). reprimanded in court (Shah,
After death of General Zia in 2001).
August 1988, there was an appeal
before the Supreme Court for Apart from outrageous and
restoration of the dissolved blatant interference in the judicial
government of Muhammad Khan proceedings of the court, the
Junejo. The Supreme Court, army government harassed,
upholding the findings of Lahore intimidated and humiliated judges
High Court that the dissolution of of the superior courts. During
the National Assembly was illegal General Yahya’s martial law in
and unconstitutional, hence void, 1969, a sub-martial law
yet refused to grant the relief of administrator, General Abu Bakr
restoration of the Assembly. The Usman Mitha issued a notice of
then Chief of Army staff General contempt of martial law to two
Mirza Aslam Beg claimed in a judges of West Pakistan High
press conference after his Court and both judges were asked
retirement that the Supreme Court to appear before the General.
did not restore the government of They were blamed in the notice
Junejo because he had send a for staying an order of a military
message to the judges of the court. The Chief Justice of the
Supreme Court not to restore the High Court met the Zonal Martial
Assembly (The News, Feb.5, Law Administrator, who was also
1993). The Supreme Court judges Governor for West Pakistan, in
did not rebut his claim. Contempt this regard and the crisis was
proceedings were initiated against averted by intervention of the
him. General Beg took stand on Governor (Shah, 1997).
his words even before the court
Conclusion:
that he had told the truth. General
Beg was found guilty of contempt
On the basis of the foregoing PLD: ---------- All Pakistan Legal
Decisions.
discussion one can say without
PLJ: ---------- Pakistan Law Journal.
fear of contradiction that all SCMR --------- Supreme Court
Monthly Review.
military regimes did not allow
Vs: ----------- Versus.
judiciary to function
1. Ali, Rafaqat: 2007, ‘Musharraf Ne
independently. They assaulted the
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Al-Jehad Trust Vs. Federation of
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Yaqoob Ali Vs. summary Military
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