It may not be a too harsh judgment to say that Judiciary in Pakistan has functioned at the behest of authority and has allowed itself to be used to further the interest of the state against its citizens. When the military government of General Parvez launched the accountability process of corrupt politicians and bureaucrats in the aftermath of Oct 12, 1999 takeover, the former Chief Justice Sajjad Ali Shah urged that the judiciary should be included in the accountability process. However, Chairman of National Accountability Bureau (NAB) Gen.  Amjad Husain has opposed the accountability of the armed forces and  the judiciary. Justifying his opposition to the accountability of the judiciary, Gen. Amjad said: " The powers given to the NAB  chairman have made the NAB very powerful. We need to evolve a mechanism for keeping the NAB under check and the only institution that  can check the NAB is judiciary. But if we start accountability of the  judiciary, who will check the NAB?" [1]

The controversial role of judiciary in politics can be traced back to 1955 when Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad's action to dissolve the first  Constitutional Assembly of Pakistan that curtailed the Governor General's powers. On 21 September 1954, the Constituent Assembly amended the Government of India Act. The amendments precluded the Governor General from acting except on the advice of his ministers. All ministers were to be members of the Assembly at the time of their selection and continue to hold office only so long as they retained the confidence of the legislature. [2]

Justice Munir, in Molvi Tamizuddin Khan's case,  declared that the Assembly was not a sovereign body. Munir declared that the Constitutional Assembly had 'lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body of the state.'

Munir was not able to find in the dominion constitution any empowerment of the Governor General which allowed his dissolution of the Constitutional Assembly. But this he dismissed as a 'lacuna' in the Independence Act. He insisted that to understand the role of Pakistan's Governor-General it was necessary to go 'far back in the history and to trace the origin and development of the British Empire itself.'

According to Munir, the independence Jinnah gained  for his country was restricted by the prerogative rights of the English Crown. He adopted the argument made to the court by Lord Diplock (a government attorney) that Pakistan did not become independent in 1947.  It had attained a status like the senior dominions, 'virtually indistinguishable from independence.

The conclusion reached by Justice Cornelius in his dissenting opinion was entirely different. He answered Munir's interpretation of Commonwealth history with his own understanding of the meaning of a dominion. He maintained that the historical fact was that Pakistan had been created with complete independence, and he pointed to what he believed to be clear  differences in the status of the senior dominions and the new dominion of Pakistan.  Cornelius stressed that Pakistan was not just a dominion but an independent dominion.

According to Allen McGrath, author of the Destruction of Pakistan's Democracy, when Munir denied the existence of the Assembly's sovereignty, he destroyed Pakistan's existing constitutional basis. He did further harm when he did not indicate where sovereignty resided. He thereby created a vacuum which was an opportunity for Ghulam Mohammed. The absence of a constitutional foundation is a harm which has lived on in Pakistan since Ghulam Mohammad left office.


Special Reference No. 1 of 1955, decided after Tamizuddin, furnished a further example of how Munir's court could accommodate Ghulam Mohammad in his consolidation of power. In the reference, Ghulam Mohammad asked the court for an advisory ruling.

To support Ghulam Mohammad's use of non-constitutional emergency powers, Munir found it necessary to move beyond the constitution to what he claimed was the Common Law, to general legal maxims, and to English historical precedent. He relied on Bracton's maxim 'that which is otherwise not lawful is made lawful by necessity', and the Roman law maxim urged by Jennings, 'the well-being of the people is the supreme law.'

In dealing with the principle of state necessity, Chief Justice Munir observed:"Subject to the condition of absoluteness, extremeness, and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under stress of necessity, the necessity being referable to an intention to preserve the Constitution, the state, or the society, and to prevent it from dissolution, and affirms...that necessity knows no law...necessity makes lawful which otherwise is not lawful." [3]

Ghulam Mohammad had seized the power of the state, and because the Constituent Assembly was denied a judicial remedy, the Governor General's position was the ultimate power of the state was not confirmed. The new Constituent Assembly, which the court required Ghulam Mohammad to call, was not a sovereign body, and the Governor General now enjoying virtual veto power over all its legislation. It also followed from the court's decision on sovereignty that the Assembly could be dissolved by the Governor General for political purposes.

Three years later, in 1958, the same Chief Justice placed a judicial stamp of approval on President Iskandar Mirza's action to dissolve the parliament and abrogate the 1956 constitution. Chief Justice Munir's decision in Dosso v. Federation of Pakistan, case set the constitutional stage for General Ayub Khan's 1958 military takeover of the government, which took place one day after the court's decision was announced.


When Sikandar Mirza dissolved the parliament in 1958 and placed the country under martial law, Munir and his court were readily available to place a judicial stamp of approval on what had taken place.  In Dosso v. Federation of Pakistan, Munir found:

'It sometimes happens, however, that the Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order…For the purpose of the doctrine here explained, a change is, in law, a revolution if it annuls the constitution and the annulment is effective…Thus the essential condition to determine whether a constitution has been annulled is the efficacy of the change…Thus a victorious revolution, or a successful coup d'etat is an internally recognized legal method of changing a constitution. After a change of constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity, depend upon the new law-creating organ. Even courts lose their existing jurisdiction and can function only to the extent and in the manner determined by the new constitution.

…If what I have already stated is correct, then the revolution having been successful, it satisfies the test of efficacy and becomes a basic law-creating factor. [4]

Munir attempted to garner respectability for his legal theory of revolution by claiming it was based on Hans Kelsen's The Pure Theory of Law, but Kelsen subsequently took pans to deny his work could serve as a basis for Munir's theory of revolution, and Kelsen's theory was later itself later repudiated by the Pakistan Supreme Court. Munir's decision in Dosso set the constitutional stage for Ayub Khan's 1958 military takeover of the government, which took place one day after the court's decision was announced. [5]


In Asma Jilani v. The Government of Punjab and others on 7 April 1972 the Supreme Court declared that General Yahya Khan had usurped power, that his action was not justified by the revolutionary legality doctrine and consequently his martial law was illegal. The court, after its detailed reasoning, came to the conclusion: "With the utmost respect, therefore, I would agree with the criticism that the learned Chief Justice (Mohammad Munir CJ) not only misapplied the doctine of Hans Kelsen, but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go far as as Kelsen had gone…I am unable to resist the conclusion that Mohammad Munir erred both in interpreting Kelsen's theory and applying the same to the facts and circumstances of the case before him. The principle enunciated by him is wholly unsustainable." [6]

Justice Yaqub Khan concluded that the judgment in Tamizuddin Khan's case, the 1955 reference, and Dosso's case had made "a perfectly good country…into a laughing stock, and converted the country into autocracy and eventually …into military dictatorship." He pointedly criticized the abrogation of the 1956 constitution, observing that "Iskandar Mirza and Ayub Khan committed treason, and destroyed the basis of representation between East and West Pakistan."

The decision was though bold but it cannot be forgotten that the Court declared Yahyah Khan a usurper only after he had ceased to hold office while the other usurpers were dead. The court has yet to perform the painful duty of questioning the legitimacy of a de facto sovereign while he is in office.


On November 10, 1977 the Supreme Court unanimously validated the imposition of martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan's highest judicial body has proved an honorable protection for military adventure in civil government. In its judgment dismissing Begum Nusrat Bhutto's petition challenging detention under Martial Law of former Prime Minister Z.A. Bhutto and 10 others, the nine-member court headed by Chief Justice Anwarul Haqobserved that after massive rigging of elections followed by complete breakdown of law and order situation bringing the country on the brink of disaster, the imposition of mar­tial law had become inevitable. The judgment also said the court would like to state in clear terms that it had found it possible to vali­date the extra constitutional action of the Chief Martial Law  Administrator (CMLA) not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible. By the period of constitutional deviation, the court meant, of course, the period between the martial law takeover and the holding of elections.

The Supreme Court judgment said:

It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the federal and pro­vincial executives and legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same constitution. Soon after the polls, the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life.

"In the presence of these unambiguous declarations, it would be highly unfair and uncharitable to attribute any other intention to the Chief Martial Law Administrator, and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic situations in terms of the 1973 consti­tution."[7]


In 1990, members of the National Assembly dissolved the General Zia in May  1988, challenged its dissolution in petitions in writ petitions in the High Courts. The petitions were dismissed. The Supreme Court dismissed the appeals against these judgments. In one of the case, the Federation of Pakistan v Saifullah Khan, the Supreme Court,  held that the dismissal of Mohammad Khan Junejo's government by General Zia in May 1998 was unconstitutional but it refused to restore the National Assembly.

In reply to a question regarding Haji Saifullah's case, General Aslam Beg told the journalists in Lahore on Feb. 4, 1993: "I did try to convey to the Honourable Supreme Court that, we had given a solemn undertaking to the nation that elections to the National Assembly would be held according to the schedule already announced and that, therefore, it would be in the best interest of the nation that we stick to our promise and the said elections were allowed to be held accordingly." [8]

The Court, on February 21,  formally charged General Beg with contempt of court. When the trial started, General Beg met with the Army Chief of Staff, General Waheed and through him assured President and the army leadership that he will not damage their image.  [9]

During the enquiry proceedings, the Chief Justice censured the respondent for giving an "irresponsible and careless" answer to the question asked by the press on Fe. 4, 1993, and remarked: "we are very sorry to hand over the defense of the country to a person if he was so careless." Again on February 20, the Chief Justice, in a moment of great anger observed: "I do not change my opinion, even if Allah the Almighty directed me to do so." Yet again, on 22 February 1993, the Chief Justice in anger held out the threat to the reporters and the respondent that "if you fail to produce the tapes, I shall blacken many faces" and "I shall ensure that I send some of you to your graves and hell."

On March 1, General Beg told the court that Chairman Senate Waseem Sajjad had carried his message to the SC to block restoration of Junejo assembly. Waseem Sajjad denies Beg's statement. At the end, General Beg was let off by the Supreme Court with a conviction but without a sentence. On appeal, even that conviction was overturned by the same court.  In a majority judgement, the Supreme Court decided on January 9, 1994 to drop proceedings against General Beg.  [10]

Commenting on the judgment, The Friday Times, Lahore, said: the court was humiliated during the contempt hearing against General Beg because it knew that it couldn't punish an army general. People made fun of Chief Justice Zullah's eccentric obiter dicta, and a witness called him corrupt inside the court. [11