The military's hold over the Pakistani judiciary is explained by a reading of deep history. But there is no reason why colonial-era relationships should define the present of future of Pakistan. Carefully cultivated by the Raj, the institutional sisterhood between the army and judiciary in colonial India was shaped by the socio-strategic rationale of an extractive state. If Robert Clive was the conqueror with the sword and musket, Warren Hastings, British India's first governor-general, was the architect of executive control over the judiciary. The legacy of what Hastings wrought is still evident in the region, more sharply in Pakistan.
The solidifying of the Raj began with the Regulating Act of 1773. This legislation not only made the East India Company responsible to the British Parliament, but also created the office of the governor-general, with four British councillors. A Supreme Court was simultaneously established in Calcutta, with a chief justice and three judges. In 1775, in perhaps one of the first recorded examples of a Southasian judiciary in service of the ruler, Sir Elijah Impey, the first chief justice, ordered the execution of an influential Brahmin named Raja Nand Kumar, who had accused Governor-General Hastings of taking bribes from the widow of Mir Jaffar and other officials. Hastings had then retaliated by using another Indian, one Mohan Parsad, to bring a case of forgery against Kumar, who was swiftly convicted and executed.
Charles Cornwallis, in power from 1786 to 1793, thereafter created tiers in the Subcontinent's judiciary, by setting up provincial courts in Patna, Calcutta, Murshidabad and Dhaka, each under the charge of a British judge. Alongside this institutionalisation of the judiciary, the governor-general, in a bid to strengthen the imperial structure of control, was empowered to override the majority of his council and act on his own. This historic law, passed in 1786, also enabled the offices of the governor-general and the commander-in-chief to be jointly held by the same official.
A detailed study by the longtime British Library archivist Richard J Bingle on the governor-general, the Bengal Council and the civil service of 1800-1835 suggests that the most obvious source of leadership in this set-up was the acknowledged head of that government, the governor-general himself. This individual could now overrule his council, enforce his will on the subordinate presidencies, and could advance or hinder the careers of civil servants. Bingle notes that given these powers, the governor-general, surrounded by legions of subordinates, resembled "a general leading his troops or a politician leading a party".