Supreme Court of Pakistan

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Supreme Court of Pakistan (SCOP)
عدالت عظمیٰ پاکستان
Emblem of the Supreme Court of Pakistan.svg
فاحكم بين الناس بالحق
So judge between men in truth
(Quran 38:26)
Established 14 August 1947
As Federal Court
2 March 1956; 58 years ago (1956-03-02)
In its current form
Country Pakistan
Location Islamabad
Composition method Executive selection (Qualifications imposed)
Authorized by Constitution of Pakistan
Decisions are appealed to President of Pakistan for Clemency/Commutation of sentence
Judge term length 65 years of age
Number of positions 1 Chief Justice + 16 Justices
Website www.supremecourt.gov.pk
Chief Justice of Pakistan
Currently Justice Nasir-ul-Mulk
Since 06 July 2014
Lead position ends Incumbent
Supreme Court of Pakistan

The Supreme Court of Pakistan (SCOP) (Urdu: عدالت عظمیٰ پاکستان; Adālat-e-Uzma Pākistān) is the apex court in the judicial hierarchy of Pakistan, the final arbiter of legal and constitutional disputes. The Supreme Court has a permanent seat in Islamabad. It also has a number of Branch Registries where cases are heard. The court has a number of de jure powers, outlined in the Constitution. Through several periods of military rule and constitutional suspensions (see Doctrine of necessity), the court has also established itself as a de facto check on military power.

It has the appellate jurisdiction over all high courts (including provincial high courts, district courts, and special courts) and federal courts, as well as original jurisdiction over a few types of cases. The Supreme Court is made up of a chief justice and a number of senior justices who are nominated by the President after consulting the Prime minister. Once appointed justices are expected to complete a designated term and then retire, unless they are removed by the Supreme Judicial Council after receiving a presidential reference regarding misconduct of judge(s).

Constitutional Authority[edit]

Part VII, Chapter 2 of the Constitution (articles 176 through 191) deals with the powers, composition, rules, and responsibilities of the Supreme Court.

These articles concern:

  • Article 176 – composition of the Court
  • Article 177 – appointment and qualifications of the Chief Justice
  • Article 178 – oath of office
  • Article 179 – retirement
  • Article 180 – vacancy, absence, or inability of the Chief Justice
  • Article 181 – vacancy, absence, or inability of other justices
  • Article 182 – ad hoc justices
  • Article 183 – location of Court
  • Article 184 – jurisdiction in a dispute between two or more governments
  • Article 185 – jurisdiction to hear and determine appeals
  • Article 186 – if requested, advise the President on important matters of law
  • Article 186A – authority to transfer venue
  • Article 187 – orders and subpoenas
  • Article 188 – power to review its own judgements and orders
  • Article 189 – binding nature of Supreme Court's decisions on all other Pakistani Courts
  • Article 190 – all executive and judicial authorities in Pakistan bound to aid the Supreme Court

In addition to these articles, the Constitution also makes numerous references to the Supreme Court in other chapters and sections. An important function of the judiciary branch is to provide checks and balances to the power of the other branches of government.

The Supreme Court under Pervez Musharraf is an exception to this rule of constitutional authority. That court took oath not under the constitution of Pakistan but under a military Legal Framework Order.

De jure power[edit]

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De jure power refers to powers that a court has under the law, though they may not be carried out or have full effect in practice. The Supreme Court of Pakistan has the explicit de jure power to block the exercise of certain Presidential reserve powers. For example, under Part III of the Chapter II: Federation of Pakistan, Article 58 the President may dismiss the National Assembly (triggering new elections), but the dismissal is subject to Supreme Court approval. The Court also has the power to overturn presidential orders and parliamentary legislation by declaring such orders or laws to be unconstitutional.

In another example of a de jure power granted to the Court, article 17 of the Constitution states:

Every citizen, not being in the service of (State of) Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Government declare that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

—Article 17:Freedom of association; Chapter I: Fundamental Rights and Principles, Constitution of Pakistan, Chapter source[1]

The Supreme Court thus provides, in principle, an important safeguard against the abuse of laws that could potentially have politically repressive consequences.

De facto power[edit]

The de jure powers of the court as outlined in the Constitution can only be understood in the context of Pakistan's political history, during which the armed forces has seized power, declared martial law and suspended the constitution. Despite the military interventions in the government, the court has maintained its institutional integrity and has been able to maintain its authority to some degree in the face of military rule. Since in 1970, Bengali Chief Justice Hamoodor Rahman published the reports of Hamoodur Rahman Commission, formed to investigate the failure and fall of East-Pakistan. The de facto powers of the Supreme Court increased immensely thereafter.

In 1977 the Supreme Court legitimized the 1977 Pakistani coup d'état (see Operation Fair Play). On 8 March 1978 the Supreme Court upheld the death sentence of former prime minister Zulfikar Ali Bhutto, who was executed on 4 April 1979 by the orders of Supreme Court. On 12 October 1999 however, the Supreme Court ordered that chairman joint chiefs General Pervez Musharraf could only allow military rule to remain in place for three years. The supreme court began hearing the corruption cases and hijacking controversy against former prime minister Nawaz Sharif, and found him guilty after sentencing him life imprisonment in a short trial. As a result, Musharraf held a national referendum on 30 April 2002, followed by general elections on October 2002— a move that substantially validated the return of democracy. The supreme court supervised the 2002 general elections and successfully oversaw the transition of powers to President to prime minister of Pakistan. The political powers of supreme court were further extended and solidified its political position in 2004 when Shaukat Aziz became prime minister.[2] Aziz's economy policy measure programmes expanded the political role of Supreme Court of Pakistan in a higher level of the government and to target high-level of government corruption independently without government interferences or government influence.[2]

Despite its controversial rulings, the Supreme Court has the strong support of the people and the elite and is one of the most respected institutions in the nation. Even during military rule, when the Court might have been expected to be subject to a supra-constitutional dispensation, it has used its institutional authority to maintain some influence over political events.

Court Composition[edit]

Unless the President records written reasons for deviating from this rule, justices retire at age sixty five.

Supreme Court of Pakistan from govt flats

Chief Justices of Pakistan[edit]

List of past and current Chief Justices of Pakistan

As of 6 July 2014, the Chief Justice of Supreme Court of Pakistan is Nasir-ul-Mulk.[3][4]

Justices[edit]

The Supreme Court of Pakistan is currently made up of the following Justices (in order of seniority).

No. Name Appointment Retirement Note(s)
1 Chief Justice Justice Nasir-ul-Mulk 5 April 2005[5] 15 August 2015[5] Appointed as a Supreme Court Judge in 5 April 2005 He was elevated to the Chief Justice of Pakistan on 06 july 2014
2 Justice Jawwad S Khawaja 4 June 2009[6] 9 September 2015
3 Justice Anwar Zaheer Jamali 1 August 2009[citation needed] 30 December 2016
4 Justice Mian Saqib Nisar 18 February 2010 17 January 2019
5 Justice Asif Saeed Khan Khosa 18 February 2010 20 December 2019
6 Justice Sarmad Jalal Osmany 14 February 2011 12 October 2015
7 Justice Amir Hani Muslim 14 February 2011 31 March 2017
8 Justice Ejaz Afzal Khan 17 November 2011 7 May 2018
9 Justice Ijaz Ahmed Chaudhry 17 November 2011 14 December 2015
10 Justice Gulzar Ahmed 16 November 2011 1 February 2022
11 Justice Muhammad Ather Saeed 17 November 2011 29 September 2014
12 Justice Sh. Azmat Saeed 1 June 2012 19 August 2019
13 Justice Iqbal Hameedur Rahman 25 February 2013 2021
14 Justice Mushir Alam 20 September 2013 18 August 2021
15 Justice Dost Muhammad Khan 31 January 2014 20 March 2018
16 Justice Umar Ata Bandial 17 June 2014 16 September 2023
17 Justice Qazi Faez Isa 5 September 2014 26 October 2024

Provisional Constitutional Order and Supreme Court[edit]

PCO 1981 (General Zia ul Haq Martial Law)[edit]

The first ever Provisional Constitutional Order (PCO) was declared by General Zia ul Haq on 25 March 1981.

Name Appointed Normal Retirement Action on PCO oath
Hon. Justice Dorab Patel  ?  ? refused PCO oath, asked to resign
Ad hoc Judge Fakhar uddin G. Ebrahim  ?  ? refused PCO oath, asked to resign
Justice Molvi Mushtaq  ?  ? willing to take oath but not invited to take oath
Chief Justice Justice Anwaar-ul-Haq  ?  ? not invited to take oath

PCO 1999 (General Pervez Musharraf First Martial Law)[edit]

The second PCO in the history of Pakistan was declared by General Pervez Musharraf on 14 October 1999.[7] When the PCO was proclaimed, at first the judiciary was not asked to take an oath.[clarification needed] On 26 January 2000 Musharraf issued an order "Oath of Office (Judges) Order, 2000" that required the judiciary to take oath of office under the PCO. The then Chief Justice Saeeduzzaman Siddiqui and 5 other judges of the Supreme Court refused to take any oath in contravention to the oath they took under the 1973 Constitution, when they became judges. Majority of the judges had more than 3 years remaining in their office. Refusing to take oath deprived them from continuing as judges, which was later termed as un-constitutional move by General Musharraf. http://news.google.com/newspapers?id=8GFaAAAAIBAJ&sjid=70wNAAAAIBAJ&dq=pakistan%20judge%20oath&pg=6907%2C2851269

Justice Iftikhar Muhammad Chaudhary, the present chief justice of the Supreme Court, although took oath under the PCO, but the senior judges refused to take oath.[citation needed]

see Pakistani coup d'état 1999

PCO 2007 (General Pervez Musharraf Second Martial Law)[edit]

The attack on the Supreme Court in 1997[edit]

Following the establishment of Anti Terrorism Courts and the Fourteenth Amendment in November 1997, legislators from different parties brought the matter before the Supreme Court under Chief Justice Sajad Ali Shah. Nawaz Sharif, Prime minister at that time, harshly criticized the Chief Justice during the proceedings and was found in contempt.

On 30 November 1997, Sharif appeared before the Supreme Court along with party workers, members, chief ministers, and constituents to hear the proceedings. Unruly party workers stormed into the Supreme Court, forcing Chief Justice Sajjad Ali Shah to remove the finding of contempt against Sharif. Hundreds of PML-N supporters and members of its youth wing, the Muslim Students Front (MSF), breached the police barrier around the courthouse when defence lawyer S.M. Zafar was arguing Sharif's case.

A journalist rushed into the courtroom and warned the bench of an impending attack. The Chief Justice rose abruptly, thanked Zafar and adjourned the hearing. The justices quickly left the courtroom but workers were able to enter, shouting slogans and damaging furniture.

The mob, led by ruling Punjabi party member Sardar Naseem and the retired Colonel Mushtaq Tahir Kheli, Sharif's political secretary, chanted slogans against the Chief Justice. Famous PTV anchor Tariq Aziz threw and broke the portrait of the founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah. The mob also attacked Pakistan Peoples Party senator Iqbal Haider. Police eventually managed to restore normalcy using batons and tear gas both inside and outside the courthouse, but the court could only proceed for about 45 minutes.

The Supreme Court under Musharraf[edit]

Shortly after General Musharraf overthrew Sharif in the 1999 Pakistani coup d'état, the opposition challenged the legitimacy of the coup and asked the court to rule on its legality.[8] On 12 May 2000 the Court rendered a nuanced verdict.[7][9]

  • In its preamble, the Court
    • rejected the options of "complete surrender" to the regime or total opposition which, in its judgement, would have led to the "closure of the courts". It chose a middle ground (praised by retired US judge John Clifford Wallace) that allowed the Court to maximize its influence.
    • asserted that it had the inherent power to examine the validity of Musharraf's orders, even orders purportedly restraining the Court from questioning his proclamations.
    • called Musharraf's coup an "extra-constitutional action".
  • In its judgement, however, the Court
    • accepted the coup on the grounds of
      • the doctrine of state Necessity (a situation having arisen for which "there was no remedy provided in the Constitution", checks and balances such as Article 58(2)(b) having been removed by the Thirteenth Amendment, hence Necessitas facit licitum quod alias non est licitum).
      • the principle of salus populi est suprema lex.
      • the principle "that the government should be by the consent of the governed, whether voters or not" (the court took note of the fact that the takeover was widely welcomed, and little-protested, and hence that the regime had the implied consent of the governed).
    • asserted the right of the Superior Courts to review the orders, proceedings, acts, and legislative measures of the Musharraf regime.
    • termed the situation a "case of constitutional deviation for a transitional period".
    • accepted the government's argument that the electoral rolls were outdated and that fresh elections could not be held without updating the electoral rolls, and that two years were required to do so.
    • gave Musharraf until 12 May 2002 to hold elections.
    • reserved for itself the right to review/re-examine the continuation of Musharraf's emergency powers.

Although the government, before this judgement, had not given a timetable for the restoration of democracy – having argued that it needed an indefinite and possibly prolonged time to reform the country – Musharraf publicly submitted to the Court's judgement.[10] The elections were duly held in October 2002 as ordered and the Constitution was revived. However, Musharraf later decided to retain power and enacted the Seventeenth Amendment in December 2003, largely incorporating the 2002 Legal Framework Order into the Constitution.[7]

Pakistani legal theorists[who?] have posited that Pakistan's "grundnorm", the basis for its Constitutional convention and system of laws, continues in effect (and the Supreme Court therefore retains its authority) even when the written constitution is suspended by the imposition of a military dictablanda.

Reference against Chief Justice[edit]

On 9 March 2007 a presidential reference was served to the Chief Justice, Iftikhar Muhammad Chaudhry, attempting to suspend him. The government ordered him to go on compulsory leave, but on 20 July 2007 the Supreme Court unanimously overturned the compulsory leave order and by a 10–13 majority also ordered Chaudhry reinstated as Chief Justice.[7]

The Court nonetheless ruled that the Provisional Order 27 of 1970, which removed executive power to suspend judges, was unconstitutional.Text of Supreme Court Order

State of Emergency[edit]

Immediately following the imposition of the state of emergency on 3 November 2007, the Chief Justice Iftikhar Muhammad Chaudhry was removed from the Supreme Court and arrested by troops of the 111th brigade of Pakistan Army sent by General Musharraf (who resigned in August 2008 under impeachment pressures).

Until the state of emergency was declared, Justices of the Supreme Court were:

Sex Scandal involving Supreme Court Justices[edit]

According to The Times, the justices who pledged allegiance to Musharraf had earlier been caught engaging in sexual acts with prostitutes. The article alleged that photographs of the judges engaging in sexual acts were used to blackmail the judges to take the oath of allegiance and make rulings favorable to the military.[11]

Supreme Court composition under Musharraf after 3 November 2007[edit]

The Supreme Court of Pakistan consisted of the following justices who took the Provisional Constitutional Order (PCO) of 3 November 2007:

  • Hon. Chief Justice Mr. Justice Abdul Hameed Dogar
  • Hon. Justice Muhammad Nawaz Abbasi
  • Faqir Muhammad Khokhar
  • Hon. Justice M. Javed Buttar
  • Hon. Justice Saiyed Saeed Ashhad.
  • Hon. Justice Ijaz-ul-Hassan
  • Hon. Justice Muhammad Qaim Jan Khan
  • Hon. Justice Mohammad Moosa K. Legari
  • Hon. Justice Ch. Ejaz Yousaf
  • Hon. Justice Muhammad Akhtar Shabbir
  • Hon. Justice Zia Perwez
  • Hon. Justice Mian Hamid Farooq
  • Hon. Justice Syed Sakhi Hussain Bokhari
  • Hon. Justice Syed Zawwar Hussain Jaffery
  • Hon. Justice Sheikh Hakim Ali (Took PCO Oath to Lahore High Court, elevated to Supreme Court on 8 February 2008)

Justice Abdul Hameed Dogar took the oath of Chief Justice even after a 7-member Supreme Court that included Chief Justice Iftikhar Muhammad Chaudhry nullified the imposition of emergency, suspension of constitution, and PCO. The Court instructed the justices not to take oath under the PCO, and all military personnel not to obey any illegal orders.[12]

On 15 February 2008 the Supreme Court delivered a detailed judgement to validate the Proclamation of Emergency on 3 November 2007, the Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007.[7] This judgement was made by the full court and written by Chief Justice Abdul Hameed Dogar. According to the judgement, "The learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction".[13]

Recent events[edit]

Restoration of Judges[edit]

On 15 March 2009 a two-year-old lawyers' movement working for restoration of the judiciary as it existed prior to the state of emergency called for a long march and a sit-in in Islamabad. Before the procession could reach Islamabad, the Prime Minister Yousuf Raza Gilani appeared on national television and announced unconditional restoration of the judiciary. On 17 March 2009 the formal official notification for restoration of the judiciary was issued. As the result of the notification, all judges who had not retired due to age limit and had not re-taken oath were restored back. Justice Javaid Iqbal, Justice Ijaz Ahmed, Justice Khalil-ur-Rehman Ramday and Justice Raja Fayyaz Ahmed were restored to their position as of 2 November 2007 with immediate effect. Justice Iftikhar Mohammad Chaudhry was notified to re-assume his office on 22 March 2009. Justice Rana Bhagwandas and Justice Falak Sher had since retired.[14]

Long March Controversy[edit]

General Ashfaq P. Kayani, the Chief of Army Staff, also had an important role by silently intervening and encouraging a rapprochement between the government and the opposition. Neither side acknowledged this role, however, until lawyers' movement leader Aitezaz Ahsan publicly admitted Kayani's role. There were rumours that protestors and law enforcement would have violently collided otherwise had he not intervened.[14]

Independence of the judiciary[edit]

The restoration of the judges resulted from immense public pressure and led the judiciary to begin a quest for independence. The goal was to ensure a strong and efficient judicial system that could quickly deliver justice to the public. The Supreme Court took notice of several important constitutional and other matters in this period that related to the public interest. These matters included the constitutional petition on PCO judges to declare the 3 November 2007 actions null and void and the constitutional petition on the national reconciliation ordinance (NRO) to declare it null and void. The Supreme Court has also been vigilant on corruption cases related to the current ruling elite, acting in cases such as the Hajj scam, rental power projects, steel mills of Pakistan, and National Insurance Corporation Limited (NICL). This judicial activism and the slowing of government productivity without corruption has created a tension between the judiciary and other government branches.[14]

Constitutional petitions No. 8 and 9 of 2009[edit]

Of the 14 justices that rendered a verdict related to taking an oath under the PCO, 12 had taken the oath themselves. However, they controversially did not apply the judgement to themselves.

Name Status
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Took Oath on PCO as Chief Justice Balochistan High Court on 26 January 2000
Mr. Justice Javed Iqbal Took Oath on PCO as Judge of Balochistan High Court on 26 January 2000
Mr. Justice Sardar Muhammad Raza Khan Took Oath on PCO as Judge of Peshawar High Court on 26 January 2000
Mr. Justice Khalil-ur-Rehman Ramday Took Oath on PCO as Judge of Lahore High Court on 26 January 2000
Mr. Justice Mian Shakirullah Jan Took Oath on PCO as Judge of Peshawar High Court on 26 January 2000
Mr. Justice Tassaduq Hussain Jillani Took Oath on PCO as Judge of Lahore High Court on 26 January 2000
Mr. Justice Nasir-ul-Mulk Took Oath on PCO as Judge of Peshawar High Court on 26 January 2000
Mr. Justice Raja Fayyaz Ahmed Took Oath on PCO as Judge of Balochistan High Court on 26 January 2000
Mr. Justice Ch. Ijaz Ahmed Took Oath on PCO as Judge of Lahore High Court on 26 January 2000
Mr. Justice Ghulam Rabbani Took Oath on PCO as Judge of Sindh High Court on 26 January 2000
Mr. Justice Sarmad Jalal Osmany Took Oath on PCO as Judge of Sindh High Court on 26 January 2000
Mr. Justice Muhammad Sair Ali Khattak Appointed as a Judge of the Lahore High Court Lahore on 2 May 2001
Mr. Justice Mahmood Akhtar Shahid Siddiqui Appointed as a Judge of the Lahore High Court Lahore on 21 September 2001
Mr. Justice Jawwad S. Khawaja. Took Oath on PCO as Judge of Lahore High Court on 26 January 2000

As a result of the 31 July 2009 decision handed down in the case of Constitutional Petitions 8 and 9 of 2009, the following justices resigned before their cases were referred to Supreme Judicial Council:

Name Appointed Status on 2 Nov 2007 PCO oath, Result of Judgement
Faqir Muhammad Khokhar 10 January 2002.[15] Supreme Court Judge Khokkhar resigned from the Court on 5 August 2009. His normal retirement would have been 15 April 2010[5]
Justice M. Javed Buttar 29 July 2004[15] Supreme Court Judge Buttar resigned from the Court on 5 August 2009. His normal retirement would have been 15 November 2013[5]

In addition to the above justices, the following justices were removed from the Supreme Court of Pakistan[16] on the ground that their appointment to the court was made without consultation with the de jure Chief Justice of Pakistan.

Name Appointed Status on 2 Nov 2007 PCO oath, Result of Judgement
Justice Muhammad Qaim Jan Khan 6 November 2007 Peshawar High Court Judge Khan became a Supreme Court justice on 6 November 2007. He was removed and deemed to have retired as a judge.
Justice Ijaz-ul-Hassan 6 November 2007 Peshawar High Court Judge Ijaz-ul-Hassan became a Supreme Court justice 6 November 2007. He was removed and deemed to have retired as a judge.
Justice Mohammad Moosa K. Legari 6 November 2007 Judge Sindh High Court Legari became a Supreme Court justice 6 November 2007. He was removed and deemed to have retired as a judge.
Justice Ch. Ejaz Yousaf 6 November 2007 Chairman Press Council[17] Yousaf was a retired Chief Justice of the Federal Shariat Court before he became a Supreme Court justice.[17] He was removed from the bench.
Justice Zia Perwez 13 November 2007 Judge Sindh High Court Perwez became a Supreme Court justice 13 November 2007. Perwez was removed and reinstated as a judge for the Sindh High Court.
Justice Mian Hamid Farooq 10 December 2007 Lahore High Court Judge Farooq became a Supreme Court justice 10 December 2007. He was removed and deemed to have retired as a judge.
Justice Syed Sakhi Hussain Bokhari 10 December 2007 Lahore High Court Judge Bokhari became a Supreme Court justice 10 December 2007. He was removed and reinstated as a judge for the Lahore High Court.
Justice Syed Zawwar Hussain Jaffery 10 December 2007 Retired Sindh High court Judge Jaffery became a Supreme Court justice 10 December 2007. He was removed and deemed to have retired as a judge.
Justice Sheikh Hakim Ali 8 February 2008[18] Lahore High Court Judge Ali became a Supreme Court justice 8 February 2008. He was removed and deemed to have retired as a judge.
Justice Muhammad Furrukh Mahmud 8 February 2008[19] Retired Lahore High Court Judge[5] Mahmud became a Supreme Court justice 8 February 2008. He was removed from the bench.
Hon. Sarmad Jalal Osmany 19 September 2008 Sindh High Court Judge Osmany refused the PCO oath and was appointed to Supreme Court on 19 September 2008. He was removed from the bench of Supreme Court and reverted to a Sindh High Court Judge. He was then appointed as Chief Justice of Sindh High Court on 1 August 2009.
Justice Sardar Muhammad Aslam 7 March 2009[citation needed] Lahore High Court Judge Aslam took the PCO oath on 3 November 2007 and became a Supreme Court Justice on 7 March 2009. He was removed and deemed to have retired.

Controversial aspect of the decision[edit]

The decision of the Court summarily removed all justices of the higher judiciary who were not part of it as of 2 November 2007. Their removal was ordered on the grounds that the de jure Chief Justice was not allowed to advise in these cases. In the same decision the court held that the de jure Chief Justice from 3 November 2007 to 22 March 2009 was Justice Chaudhry.[14]

There were three groups of removed justices:

  • Those elevated to higher courts who initially took oath under the PCO
  • Those who were elevated to higher courts after restoration of the Constitution and were appointed by Musharraf
  • Those who were elevated to higher courts after restoration of the Constitution and were appointed by Asif Ali Zardari

The Supreme Court bench that rendered the decision consisted entirely of justices who had taken oath under the PCO of 1999 themselves, but were already sitting justices of the higher judiciary at the time and had taken a constitutional oath. The 1999 PCO and decisions made under it were given constitutional protection by Seventeenth amendment.[14]

This decision has resulted in situations where:

  1. newly appointed justices who never took any sort of oath under any PCO have been removed
  2. sitting justices who took an oath under the 2007 PCO are still acting as justices, though their cases will be sent to Supreme Judicial Council
  3. sitting justices who were reappointed and took oath under Justice Dogar are still acting as justices with no action
  4. justices who took oath under the PCO of 1999 are still functioning as justices of higher judiciary

Critics of the decision question the fact that some PCO judges are still working and some non-PCO judges have been sacked.

Review petition filed by Lahore High Court non-PCO removed judges[edit]

Removed ad hoc judges of the Lahore High Court have filed several petitions in the Supreme Court in Lahore for review of its judgment, which sent 76 judges of Supreme Courts and High Courts immediately home.

These judges argue that they were qualified to be appointed as judges of the High Court in accordance with the requirements of Article 193(2)of the 1973 Constitution and were offered to serve as ad hoc judges following the consultation required under the Constitution. They accepted the offer and took oath when the state of emergency was lifted. They never took oath under a PCO and continued performing the functions of judges of the High Court until judgement was rendered against them.

These judges were appointed by Lahore High Court Chief Justice Justice Zahid Hussain, who is still a justice of the Supreme Court of Pakistan and is not being tried before the Supreme Judicial Counsel.

The petition also noted that none of the sacked judges were made parties to the decision against them, nor were they able to comment in the hearing or in some cases aware that the hearing was taking place. They also allege that no copy of the decision was sent to the High Court or to the judges concerned.

Key Controversial points[edit]

According one news article,[20] the Supreme Court has applied its judgement retroactively, having effect from 3 November 2007. The 14-member Supreme Court bench has not, however, applied the sanction to judges who took oath under the 1999 PCO. Some of these are current justices, and some have not yet taken a constitutional oath.

Critics of the decision also argue that it is inconsistent with the principles laid down in Malik Asad Ali’s case where it was held that the Chief Justice was bound by the Court's judgement. Chief Justice Sajjad Ali Shah was removed from office based on this case.

Inconsistently with the decision, the present Chief Justice Chaudhry has accepted the stance of the government that Justice Dogar was the Chief Justice until his retirement.

Following the decision, the official website of Supreme Court was hacked by an unknown person. The hacked website made derogatory remarks about Chief Justice Chaudhry.

See also[edit]

References[edit]

  1. ^ "Part II:Chapter I: Fundamental Rights (Article 17: Freedom of association)". Constitution of Pakistan. pakistani.org. Retrieved 20 June 2012. 
  2. ^ a b Halliday, Terrence C.; Lucien Karpik (2012). "Miscariage of Chief Justice: Judial Power and Legal Complex in Pakistan under Shaukat Aziz" (google books). In Malcolm M. Feeley. Fates of Political Liberalism in Post-British Colony: Pakistan (in English Language) (1 ed.). Cambridge University Press, 2012. pp. 350–351. ISBN 978-1-107-01278-3. Retrieved 6 June 2012. 
  3. ^ "Justice Nasir-ul-Mulk sworn in as new CJP". thenews.com.pk. 6 July 2014. Retrieved 6 July 2014.  |first1= missing |last1= in Authors list (help)
  4. ^ "Justice Nasir-ul-Mulk takes oath as new chief justice of Pakistan". dawn.com. 6 July 2014. Retrieved 6 July 2014.  |first1= missing |last1= in Authors list (help)
  5. ^ a b c d e Supreme Court Report Golden Jubilee Edition 2006
  6. ^ "President appoints Justice (retd) Jawwad as SC judge". The News International. 4 June 2009. Retrieved 2009-06-04. 
  7. ^ a b c d e Kalhan, Anil (2010). "Constitution and 'Extraconstitution': Emergency Powers in Postcolonial Pakistan and India". Emergency Powers in Asia (Victor Ramraj & Arun Thiruvengadam, eds.). 
  8. ^ Military takeover challenged in court, BBC, 22 November 1999
  9. ^ Pakistan court limits army rule, BBC
  10. ^ "SOUTH ASIA | Musharraf pledges return to democracy". BBC News. 25 May 2000. Retrieved 2009-11-09. 
  11. ^ Sex Scandal involving Supreme Court Judges. Ghulam Hasnain, reporting from Islamabad for The Times, 11 November 2007. Retrieved 21 November 2007.
  12. ^ golden-historic-decision-by-supreme-court-of-pakistan/ Order of the Supreme Court of Pakistan 3 November 2007.
  13. ^ "Business Recorder [Pakistan's First Financial Daily]". Brecorder.com. Retrieved 2009-11-09. 
  14. ^ a b c d e Kalhan, Anil (January 2013). ""Gray Zone" Constitutionalism and the Dilemma of Judicial Independence in Pakistan". Vanderbilt Journal of Transnational Law 46: 1. 
  15. ^ a b Supreme Court Annual Report 2012-2013
  16. ^ Supreme Court Decision CONSTITUTION PETITION NO. 09 and 08 OF 2009
  17. ^ a b "Encore, NOS, The News International". Jang.com.pk. Retrieved 2009-11-09. 
  18. ^ "Justice Sheikh Hakim ali | Justice supreme court of Pakistan @ Pakistan Herald". Pakistanherald.com. Retrieved 2009-11-09. [dead link]
  19. ^ "International : Pak Supreme Court gets two more judges : 75540". Indopia.in. Retrieved 2009-11-09. 
  20. ^ "Leading News Resource of Pakistan". Daily Times. Retrieved 2009-11-09. 

External links[edit]

Coordinates: 33°43′41″N 73°05′55″E / 33.72806°N 73.09861°E / 33.72806; 73.09861