Judiciary and Constitutional Development: CSS Solved Answer

Exam question: CSS 2017, Q3: Discuss the role of judiciary in the constitutional development of Pakistan.

Syllabus topic: Topic XXVII of the CSS Pakistan Affairs syllabus.

Short answer

Outline for quick revision

Introduction
Phase I (1954-1977): The Doctrine of Necessity: The Tamizuddin case (1955); Dosso and Asma Jilani; Nusrat Bhutto (1977)
Phase II (1977-2007): Accommodation with Military Rule: Oaths under Provisional Constitutional Orders; Zafar Ali Shah (2000)
Phase III (2007-2024): Judicial Assertion and Activism: The lawyers’ movement; Rejecting the doctrine of necessity; Accountability of a military ruler; Judicial activism and controversy; Correcting history
Phase IV (2024-2026): Restructuring the Judiciary: The 26th and 27th Amendments; Military trials and the courts; Debate on independence
Evaluation: Negative role; Positive role; The lesson
Conclusion

Reference colours:
Quotation / documentPersonality / historySyllabus bookCurrent referenceOfficial report / policy

1. Introduction

In a constitutional democracy, the judiciary is the guardian of the constitution: it interprets the law, protects fundamental rights and keeps the other branches within their limits. In Pakistan, the superior courts have played a decisive, and controversial, role in shaping constitutional development, from the dissolution of the first Constituent Assembly in 1954 to the 27th Amendment of 2025.

This answer traces the judiciary’s role through four phases and evaluates it. It argues that the judiciary has played a double role: for long periods it legitimised unconstitutional rule through the doctrine of necessity, but at key moments it also defended the Constitution and fundamental rights. Its independence has repeatedly been contested, most recently by the 26th and 27th Amendments.

Syllabus book: Paula R. Newberg, Judging the State (1995), shows how Pakistan’s superior courts repeatedly legitimised extra-constitutional rule through the “doctrine of necessity”, from Dosso (1958) to Nusrat Bhutto (1977), weakening constitutionalism.

2. Phase I (1954-1977): The Doctrine of Necessity

The Tamizuddin case (1955)

The Federal Court validated the Governor-General’s dissolution of the first Constituent Assembly, the first time the judiciary sided with an unelected executive against an elected body, setting a pattern for decades.

Official report / policy: In Federation of Pakistan v. Maulvi Tamizuddin Khan (1955), the Federal Court under Chief Justice Muhammad Munir upheld Governor-General Ghulam Muhammad’s dissolution of the first Constituent Assembly (October 1954), on the technical ground that its laws needed his assent; Justice A.R. Cornelius dissented. This opened the way for the “doctrine of necessity”.

Dosso and Asma Jilani

The courts validated the martial law of 1958, and only condemned Yahya Khan after he had fallen.

Personality / history: In State v. Dosso (1958), Chief Justice Muhammad Munir relied on Hans Kelsen’s theory that a “victorious revolution” creates its own legality, validating Ayub Khan’s martial law; in Asma Jilani (1972) the Supreme Court overruled Dosso and called Yahya Khan a “usurper”, but only after he had fallen.

Nusrat Bhutto (1977)

The Supreme Court validated Zia-ul-Haq’s coup under the doctrine of necessity and even allowed him to amend the Constitution. Later, the trial and execution of Z.A. Bhutto (1979) became the most criticised judicial decision in Pakistan’s history.

Official report / policy: On 6 March 2024, a nine-member bench of the Supreme Court unanimously held, in its opinion on a presidential reference, that Zulfikar Ali Bhutto had not received a fair trial before he was hanged in 1979, an official admission of how the judiciary was used under military rule.

3. Phase II (1977-2007): Accommodation with Military Rule

Oaths under Provisional Constitutional Orders

Military rulers required judges to take fresh oaths under Provisional Constitutional Orders (1981, 2000 and 2007); judges who refused were removed, while those who complied served the regime.

Zafar Ali Shah (2000)

The Supreme Court validated Musharraf’s 1999 coup, gave him three years to hold elections and even allowed him to amend the Constitution, repeating the doctrine of necessity.

Syllabus book: Ayesha Jalal, Democracy and Authoritarianism in South Asia (1995), argues that the contrast of “democratic India” and “authoritarian Pakistan” is misleading: both inherited centralised colonial structures, and in Pakistan the dominance of the bureaucracy and the military over weak political parties shaped the state.

Four phases of the judiciary’s role

1954-1977: necessity: Tamizuddin, Dosso, Nusrat Bhutto
1977-2007: PCO oaths, Zafar Ali Shah
2007-2024: lawyers’ movement, activism, Article 6
2024-2026: 26th and 27th Amendments, FCC

In the 1990s the Supreme Court reinstated the Nawaz Sharif government (1993) after a presidential dismissal, and courts asserted their independence in the Al-Jehad Trust case (1996) on judicial appointments, showing that the judiciary could check the executive.

4. Phase III (2007-2024): Judicial Assertion and Activism

The lawyers’ movement

When Musharraf suspended Chief Justice Iftikhar Chaudhry in March 2007 and imposed an emergency in November 2007, lawyers, media and civil society launched a historic movement that restored the Chief Justice in March 2009, a turning point in judicial independence.

Rejecting the doctrine of necessity

In the Sindh High Court Bar Association case (July 2009), the Supreme Court declared the emergency of November 2007 unconstitutional, and the 18th Amendment (2010) amended Article 6 so that no court can validate the abrogation or suspension of the Constitution.

Official report / policy: The 18th Amendment (April 2010), passed unanimously, abolished the Concurrent List and devolved its subjects to the provinces, removed the President’s power to dissolve the National Assembly (Article 58(2) (b)), renamed NWFP as Khyber Pakhtunkhwa, strengthened the Council of Common Interests, barred any reduction of the provinces’ NFC share, and added new rights such as free education for children aged 5-16 (Article 25A) and the right to information (Article 19A).

Accountability of a military ruler

In December 2019, a special court sentenced Pervez Musharraf to death for high treason under Article 6, the first such verdict against a former army chief. The Lahore High Court set it aside in 2020, but in January 2024 the Supreme Court upheld the verdict, after Musharraf’s death in 2023.

Judicial activism and controversy

Wide use of suo motu powers, the disqualification of Prime Ministers Yousaf Raza Gilani (2012) and Nawaz Sharif (2017), and interventions in governance made the judiciary a political actor; critics accused it of overreach and political engineering.

Correcting history

In March 2024, the Supreme Court admitted that Z.A. Bhutto had not received a fair trial, an attempt to correct one of its own darkest decisions.

5. Phase IV (2024-2026): Restructuring the Judiciary

The 26th and 27th Amendments

Parliament restructured the higher judiciary, changing appointment procedures and creating a Federal Constitutional Court above the Supreme Court on constitutional questions.

Official report / policy: The 26th Amendment (October 2024) gave a 12-member Special Parliamentary Committee the power to choose the Chief Justice from among the three most senior judges (it chose Justice Yahya Afridi over the most senior, Justice Mansoor Ali Shah), added parliamentarians to the Judicial Commission, and created constitutional benches in the Supreme Court and high courts to hear constitutional cases.

Current reference: Parliament passed the 27th Amendment with a two-thirds majority on 13 November 2025 (Senate vote 64-4). It created a Federal Constitutional Court (Article 175B) whose decisions bind the Supreme Court, removed the Supreme Court’s original jurisdiction over fundamental rights, allowed transfer of high court judges without consent, and gave the President lifetime immunity from criminal proceedings (Article 248). Justice Aminuddin Khan became the first FCC Chief Justice, while Justices Mansoor Ali Shah and Athar Minallah resigned from the Supreme Court in protest, Minallah writing that “the Constitution that I swore an oath to uphold and defend is no more.”

Military trials and the courts

The Supreme Court’s Constitutional Bench restored the trial of civilians by military courts in May 2025, reversing its own 2023 judgment.

Current reference: On 8 May 2025, the Supreme Court’s Constitutional Bench (5-2) overturned its October 2023 judgment and allowed the trial of civilians accused in the 9 May 2023 attacks on military installations by military courts.

Debate on independence

The government presents these changes as ending judicial overreach; critics, including senior judges who resigned and the UN human rights chief, see them as subordinating the judiciary to the executive.

Official report / policy: The UN High Commissioner for Human Rights, Volker Türk (28 November 2025), said the hastily adopted 26th and 27th Amendments “risk subjugating the judiciary to political interference and executive control”, and that “sweeping immunity provisions like these undermine accountability”. Pakistan’s government rejected the criticism as unwarranted interference in a sovereign parliament’s decision.

6. Evaluation

Negative role

By validating coups and accepting PCO oaths, the judiciary helped interrupt constitutional development and legitimised military rule for decades.

Positive role

It also protected fundamental rights, enforced the Constitution against governments, ended the doctrine of necessity after 2007 and became a symbol of resistance during the lawyers’ movement.

The lesson

The judiciary strengthens constitutional development when it is independent, restrained and impartial; it weakens it when it either bows to power or seeks power for itself.

7. Conclusion

The judiciary has been central to Pakistan’s constitutional development. From Tamizuddin to Zafar Ali Shah it legitimised the dismissal of assemblies and military rule through the doctrine of necessity; from 2007 it asserted its independence, buried that doctrine and held even a former army chief accountable, though sometimes at the cost of overreach. Today, under the 26th and 27th Amendments, its independence is again in question. A Constitution can be secure only when its guardian is both independent and restrained, neither a servant of power nor a rival to it.

Judiciary and Constitutional Development: CSS 2017 Solved Answer