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 coups, three out of it were not declared illegitimate by supreme judiciary for the removal of civilian governments. On the contrary, the doctrine of necessity became the quoted terms as causes of accepting those extra-constitutional moves. While adjudicating these cases, military establishment either used their institutional influence or manured the judiciary to take afresh oath of allegiance of military rulers under provisional or interim constitutional orders. Thus, the cases before these judges were just hoodwinking or a lip service of endorsing and affixing a stamp of validity. Moreover, superior judiciary had authorized military rulers to amend the constitutions, which is sole prerogative of parliament as per constitutions of the time. Thus, superior judiciary was unable to stand in front of power dynamics, except in the case of Asma Gillani vs Federation of Pakistan, but its decision was adjudicated, when General Yahya Khan was not in power. While applying heterogeneous sampling technique, the study has attempted to accumulate a variety of expert opinions on the role and independence of judiciary vis-a-vis the military regimes. The findings show that decisions of superior courts, to assure smooth running of the country, sacrificed the spirit of the constitutions. Apex court’s decisions only tried to maintain the status quo and to pave the way to let the new system run.