Supreme Court of Pakistan

The Supreme Court (Urdu: عدالت عظمیٰ ) is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The Court's permanent seat is Islamabad. The Court has a number of de jure powers which are outlined in the Constitution of Pakistan. Through several periods of military rule and constitutional suspensions, the court has also established itself as a de facto check on military power.

Constitutional Authority

Part VII, chapter 2 of the Constitution (articles 176 through 191) deals with the powers, composition, rules, and responsibilities of the Supreme Court. Here is a summary:

• Article 176 - composition of the Court
• Article 177 - appointment and qualifictions of the Chief Justice
• Article 178 - oath of office
• Article 179 - retirement
• Article 180 - vacancy, absence, or inability of Chief Justice
• Article 181 - vacancy, absence, or inability of other judges
• Article 182 - ad hoc judges
• Article 183 - location of Court
• Article 184 - jurisdiction in 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 - Supreme Court's decisions binding on all other Pakistani Courts.
• Article 190 - all executive and judicial authorities in Pakistan are bound to aid the Supreme Court.

In addition to the above, the Constitution 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 Pervaiz Musharaff took oath not on the constitution of Pakistan but on a Legal Framework Order made by the military.

De Jure Power

The Supreme Court has the explicit, de jure power to block the exercise of certain Presidential reserve powers. For example, under 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.

Another example: article 17 of the Constitution states:

Every citizen, not being in the service 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 Federal 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.

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

De facto power

The de jure powers of the court as outlined in the Constitution must be seen in the context of Pakistani political history during which the army 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 in some degree to maintain its authority in the face of military rule.

The Court has the strong support of the people and the elite and is one of the more 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 managed to use its institutional authority to maintain some influence over political events.

For example, shortly after the government of General Pervez Musharraf came to power by a coup, the opposition challenged the legitimacy of the coup, asking the court to rule on its legality Military takeover challenged in court; BBC, Nov 22 1999. On May 12, 2000 the Court rendered a nuanced verdict Pakistan court limits army rule, and -

• 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 course (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" but
• in its judgement,
  • 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) and
    • the principle of salus populi est suprema lex, and
    • 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, and
  • termed the situation a "case of constitutional deviation for a transitional period", and
  • 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, and
  • gave Musharraf until May 12, 2002 to hold elections, and
  • 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 Courts judgement [1]. The elections were duly held in October 2002 as ordered and the Constitution was revived.

Pakistani legal theorists 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.

Composition

File:Supreme court of pakistan.jpeg

The Supreme Court of Pakistan

On Saturday, 03 November 2007, the Court consisted of the Chief Justice of Pakistan and 16 other Judges:

• The UnConstitutional Chief Justice Mr. Justice Iftikhar Mohammad Chaudhry
• Mr. Justice Rana Bhagwandas
• Mr. Justice Javaid Iqbal
• Mr. Justice Abdul Hameed Dogar
• Mr. Justice Sardar Muhammad Raza Khan
• Mr. Justice Khalil-ur-Rehman Ramday
• Mr. Justice Muhammad Nawaz Abbasi
• Mr. Justice Faqir Muhammad Khokhar
• Mr. Justice Falak Sher
• Mr. Justice Mian Shakirullah Jan
• Mr. Justice M. Javed Buttar
• Mr. Justice Tassadduq Hussain Jillani
• Mr. Justice Saiyed Saeed Ashhad
• Mr. Justice Nasir-ul-Mulk
• Mr. Justice Raja Fayyaz Ahmed
• Mr. Justice Chaudhry Ijaz Ahmed
• Mr. Justice Syed Jamshed Ali
• Mr. Justice Hamid Ali Mirza
• Mr. Justice Karamat Nazir Bhandari

After imposition of Provisional Constitutional Order by the Chief of Army Staff Pervaiz Musharraf (and not President Pervaiz Musharraf) on Saturday, 03 November 2007, the judges had to take a fresh oath. Only four out of 17 judges took oath, and the Court consists of the new Chief Justice of Pakistan and 03 other Judges:

• The Honourable Chief Justice Mr. Justice Abdul Hameed Dogar
• Mr. Justice Muhammad Nawaz Abbasi
• Mr. Justice Faqir Muhammad Khokhar
• Mr. Justice M. Javed Buttar

Justice Abdul Hameed Doogar took oath of de facto Chief Justice, even after a 7-member Supreme Court Bench, including the Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry, nullified the imposition of emergency, suspension of constitution, Provisional Constitutional Order; and instructed all the honourable judges not to take oath under the Provisional Constitutional Order(PCO), and ordered all the military personals not to obey any "illegal" orders. He was then arrested by Pakistan Army with seven other judges. Thus, the current status of Justice Abdul Hameed Dogar can at best be called de facto Chief Justice of Pakistan.

Recent events

On 9th March 2007, a presidential reference was served to the Chief Justice, Iftikhar Muhammad Chaudhry, attempting effectively to suspend him. The government ordered him to go on compulsory leave. On July 20, 2007, the Supreme Court unanimously overturned the compulsory leave order, and by a ten-out-of-thirteen majority, also ordered Chaudhry reinstated as Chief Justice.

The court ruled that the PO 27 of 1970 is unconstitutional. This order takes away the power of the executive to suspend Judges.Text of Supreme Court Order

See also

Judiciary

• Chief Justice of Pakistan
• Supreme Judicial Council of Pakistan
• Judiciary of Pakistan
• High Courts of Pakistan

Constitution and Laws of Pakistan

• Constitution of Pakistan
• Seventeenth Amendment to the Constitution of Pakistan
• Zia-ul-Haq's Islamization

Other

• Rule of Law
• Separation of Powers

External links

• Supreme Court of Pakistan
• Law and Justice Commission Government of Pakistan
• Judgement of the Supreme Court of Pakistan on the Petitions Challenging the Provisional Constitutional Order and the State of Emergency
• BBC 2005 Pakistanis 'dismayed' with courts
• An International Stinging Indictment of Superior Judiciary in Pakistan

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