The role of superior judiciary in protecting its independence: A case study of judicial legitimization of military regimes in Pakistan

Abstract

Pakistan has faced four military regimes, in three out of it, the military rulers were not declared illegitimate by the supreme judiciary, on the contrary, the doctrine of necessity became the quoted terms as causes of accepting those extra-constitutional moves. While adjudicating these cases, the establishment either used their personal influence or manured the judiciary to take afresh oath of allegiance of the military rulers under the provisional constitutional orders (PCO). Thus, the cases before these judges were just hoodwinking or a lip service of endorsing and affixing a stamp of validity. Even then the superior judiciary had authorized the military rulers to amend the constitution, which is the role prerogative of the parliament not only as per Pakistan constitution. Thus, superior judiciary was unable to stand in front of power dynamic, except in the case of Asma Gillani vs federation of Pakistan, but it was adjudicated, when General Yahya was not in power. While applying heterogeneous sampling research techniques the study has attempted to accumulate a variety of expert opinions on the role and independence of the judiciary. Findings show that the judges, to assure smooth running of the country, sacrificed the very spirit of the constitution. The apex court decisions only tried to maintain the statuesque and to pave the way to let the system run.