BETWEEN DEFERENCE AND DEFIANCE: JUDICIAL AUTHORITY, EXECUTIVE SUPREMACY, AND CONSTITUTIONAL FRAGILITY IN EARLY PAKISTAN (1947–1971)

Abstract

The consolidation of democratic governance in post-colonial states hinges, in large measure, on the functional equilibrium between state branches. Pakistan's constitutional experience in its foundational quarter-century presents a particularly instructive case of that equilibrium's collapse. Drawing on constitutional cases, legislative records, and historical scholarship, this article examines the relationship between the executive and judicial branches in Pakistan from independence in 1947 through the breakup of 1971. It argues that what appeared to be institutional harmony masked a structurally subordinate judiciary that repeatedly deferred to executive overreach, most consequentially through its recourse to the doctrine of necessity. The article traces how inherited vice-regal frameworks, bureaucratic authoritarianism, and an absent constitutive constitution converged to inhibit judicial independence. Analysis of landmark rulings, including the Maulvi Tamizuddin, Usif Patel, Dosso, and Ghulam Jilani cases, reveals a pattern of judicial capitulation punctuated by fitful assertion. The article contends that rather than functioning as a guardian of constitutionalism, the superior judiciary became, paradoxically, an instrument of its erosion. These findings carry implications for understanding institutional failure in post-colonial democracies and for current debates on judicial independence in fragile constitutional orders.