Judiciary is known as one of the fourth pillars of state. But unfortunately, the judiciary has been exploited and misused by the powerful state forces. Pakistan was born without a constitution and the whole constitutional system ran under British 1935 Act. The first constitutional assembly was founded upon it and was dissolved by Governor General Ghulam Muhammad. And this was the turning point of the superior court headed by Chief Justice Munir who endorsed this dictatorial move.
This verdict of Justice Munir became the basis for the next three decades’ assemblies to be dissolved in its light. Civilian governments tried to form a constitution multiple times unsuccessfully but after much ado the so-called civilian government of Chaudhry Muhammad Ali developed the first constitution in 1956. They also announced the first elections the next year.
The first Pakistani Army Chief General Ayub Khan took the advantage of political confrontation and polarisation of political parties and imposed the first martial law. Following the earlier steps of Justice Munir, the Supreme Court justified it and gave all power to Ayub Khan to run the government becuase of which he got to rule for 10 years without any interruption. This is the time that strong nationalist forces of East Pakistan decided that there could be no more a united Pakistan.
The first elections were held in 1970 and the first democratic constitution was formed in 1973. Even this constitution which was passed unanimously could not save the creator of the constitution, Zulfiqar Ali Bhutto and once again in 1977 the second martial law was imposed. Again, Justice Munir doctrine was used by the new military dictator.Another decade was lost without democracy and judicial supremacy.
The accidental death of Ziaul- Haq in August 1988 gave the chance to Pakistan to become a two-party system democracy. However, all of the 90s decade was known as a sham democracy and all Supreme Court Judges used Munir doctrine to send governments back home. The Musharraf era is just recent history where the powerful lawyers movement brought back the Chaudhry Court.
One must mention here that the democratic politicians were no different from the dictators when it came to exploitation of judiciary.
In 2006, in the much known Al-Jihad Trust case it was decided that the most senior judge would be the Chief Justice. And the procedure followed through till Justice Qazi Faiz Esa.
However, once again the judiciary divided and came under the influence of political forces who thought that today the foremost challenge for them is judiciary. The two parties PPP and PML-N brought about 26th amendment which gave power to appoint the Chief Justice. Through this amendment, for the first time, the Parliament was given power to choose Chief Justice, not on seniority basis but on power bias.
When the 29th Chief Justice was bidding farewell to the Court, it would be remembered as a dark day in judicial history that 5 judges boycotted the reference and the senior most judge Mansoor Ali Shah criticised Qazi Esa, using words that have not been used in the past in the Supreme Court. So, the 30th Chief Justice Yahya Afridi should be ready to face a judicial divide
