Literature Review

According to 1973 constitution, Pakistan would be a federal state with four

federating units, Punjab, Sindh, KPK and Baluchistan. Federalism is a system of
government in which powers are constitutionally distributed among units and
centre. According to (Adeney,2007) federalism is a form where sovereignty is
shared between centre and units. In this federal set up where generally multi
ethnic societies are present Judiciary become an institution of great importance
and these is a great need of independent judiciary for good working of
federation.
The administration of justice in Pakistan is divided into the superior judiciary and
subordinate judiciary. The superior judiciary comprises of Supreme Court, High
Courts and Federal Shariat Court(FPC). The subordinate judiciary includes the
civil, criminal, administrative and special courts that are created under sub
constitutional laws and are subject to the supervisory control of high
Courts(Mannan 1973). According to the works of (Newberg 1995) and (Ahmed
2014 there are numerous phases of constitutional growth in Pakistan. The first
period can be democratic period (1947-1956). At the time of independence,
Pakistan inherited a healthy judicial system having and impartial appointment
procedures (Khan 2008). Pakistan adopted Government of India Act 1935 as
interim constitution with certain amendments. In March 1949, the constituent
Assembly adopted the Objective Resolution which ensured the independence of
judicciarya main feature of future constitution (Objective Resolution, 1949
quoted in Naveeb Ahmed, Syeda Mahpala Safdar work on paradoxes of judicial
independence in Pakistan). There is a lot of criticism of 1935 Government of India
Act also. Sir Ivor Jennings had built historical theories to prove that Pakistan is
still dominion and Governor General has all that rights (McGrath, 2000). So,
judicial independence was not ensured in that period practically.
In between the period of 1956-1988 there occurred a huge number of changes in
political Scenario of Pakistan. Pakistan adopted three constitutions, Pakistan
faced these martial laws in this time and a person was hanged in Pakistan was a
hero of million in Pakistan at some time. But unfortunately, independence of
judiciary remained a dream for Pakistan yet another time. For instance in 1958,
Chief Justice Muahmma Munir validated the Martial Law and court preserved its
own limited powers but gave another setback in judicial independence (Newberg
1995). Pakistan adopted another constitution in 1962 but another time this
constitution also abrogated and judiciary failed yet again to protect constitution
although there were also a huge criticism on constitution also.
Pakistan adopted another constitution in 1973 which envisages the
independence of judiciary and its separation from the executive. The
composition, jurisdiction, powers and functions of the superior courts are
prescribed in a comprehensive manner. The judiciary power of the state is vested
in the distinct judicial department. But this judicial independence did not seem to
be an easy task. This judiciary independence was limited by certain
constitutional amendments. In 1977, in case of Nusrat Bhutto, the Supreme

Court once again used the doctrine of necessity and legalized the costitional
abrogation. So, another army chief took the charge. Once again judiciary failed
to protect constitution because of practical independence of it and the General
Zia ul Haw once again introduced a number of amendments and harmed the
judicial independence. (Naveed Ahmed and Syeda Mahpara Safdar,2014).
After facing another martial law by Musharaf, Pakistan adopted Eighteenth
amendment in constitution in 2010. These eighteenth and nineteenth
amendment have brought fundamental changes in judicial setup. The
amendments created the judicial commission and parliamentary committee to fill
actual or potential vacancies in the superior courts of Pakistan. The Supreme
Court examined the 18th amendment and referred the matter to the parliament
with certain suggestion(Nadeem Ahmed Advocate Vs Fedeartion of paksitan
2010). So, after this 18th amendment in the constitution, there is great say of
hope for many optimistics that judiciary is independent in Pakistan. But there is
intense need to look at functionary of judiciary that is this proposition is right? If
military courts are running in country. Are courts free enough to juridict every
matter? Another finding needs to be work on whether is there any example after
18th amendment which ensures and empowers judiciary independence. So,
answers of these ambiguous questions need to be given to make sure that
judiciary is independent in Pakistan.