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


Revision as of 19:19, 21 March 2009

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The Supreme Court (Urdu: عدالت عظمیٰ) is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The Supreme Court sits in Islamabad. It has a number of de jure powers which are outlined in the Constitution. 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 qualifications 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 Musharaf 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.

Cases judged

During Nawaz Sharif's government, the Supreme Court declared inconstitutional several anti-terrorist laws, including the 1997 Anti-Terrorism Act (which established Anti-Terrorism Courts) subsequently amended in October 1998 (Merham Ali vs Federation of Pakistan) [1]; and the 1998 Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, declared "unconstitutional, without legal authority, and with no legal effect" on 22 February 1999 (Liaquat Hussain versus Federation of Pakistan) [1].


Current Composition

Restored (Refused PCO Oath)

  • Hon. Chief Justice Iftikhar M. Chaudhry
  • Hon. Justice Javaid Iqbal
  • Hon. Justice Khalil-ur-Rehman Ramday
  • Hon. Justice Chaudhry Ijaz Ahmed
  • Hon. Justice Raja Fayyaz


CURRENT (Took Oath under 2007 PCO)

  • Chief Justice Mr. Justice Abdul Hameed Dogar (PCO Pre Nov 3)
  • Justice Faqir Muhammad Khokhar (PCO Pre Nov 3)
  • Justice M. Javed Buttar (PCO Pre Nov 3)
  • Justice Saiyed Saeed Ashhad. (PCO Pre Nov 3)


  • Justice Syed Zawwar Hussain Jaffery (PCO Post Nov 3)
  • Justice Ijaz-ul-Hassan (PCO Post Nov 3)
  • Justice Muhammad Qaim Jan Khan (PCO Post Nov 3)
  • Justice Mohammad Moosa K. Legari (PCO Post Nov 3) Declared Sharifs Ineligible
  • Justice Ch. Ejaz Yousaf (PCO Post Nov 3)
  • Justice Muhammad Akhtar Shabbir (PCO Post Nov 3)
  • Justice Zia Perwez (PCO Post Nov 3)
  • Justice Mian Hamid Farooq (PCO Post Nov 3)
  • Justice Syed Sakhi Hussain Bokhari (PCO Post Nov 3) Declared Sharifs Ineligible
  • Justice Sheikh Hakim Ali (PCO Post Nov 3) Declared Sharifs Ineligible

Fresh Appointments by Present Govt. (Refused PCO Oath but took Oath again)

  • Hon. Justice Tassaduq Hussain Jillani
  • Hon. Justice Syed Jamshed Ali
  • Hon. Justice Mian Shakirullah Jan
  • Hon. Justice Sardar Muhammad Raza Khan
  • Hon. Justice Nasir-ul-Mulk
  • Hon. Justice Sabihuddin Ahmed
  • Hon. Sarmad Jalal Usmani

The Supreme Court under Musharraf

Furthermore, shortly after General Pervez Musharraf overthrew Nawaz Sharif by a military coup, the opposition challenged the legitimacy of the coup, asking the court to rule on its legality [2]. On May 12, 2000 the Court rendered a nuanced verdict [3] 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. However, Musharraf later decided to retain power; he enacted the Seventeenth Amendment in December 2003, which largely incorporated to the Constitution the 2002 Legal Framework Order.

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.

Sex Scandal involving Supreme Court Judges

According to The Times, the Judges of the Supreme Court of Pakistan who had pleged allegiance to General Pervez Musharaff have been caught in sexual acts with prostitutes. The article alleges that the photographs of the judges in sexual acts were used to blackmail the judges to take the oath of allegiance and make rulings that the military wants.[4]

Chief Justice Chaudhry was then arrested by Pakistan Army along with the seven Justices who had refused to take an oath of allegiance to President Musharaff.

Now, four more judges have taken oath to the PCO. These four judges are not from the existing roaster of judges on November 03, 2007.

Supreme Court composition under Musharraf

Currently the Supreme Court of Pakistan consists of the following who took under the Provisional Constitutional Order (PCO) of November 3rd 2007 oathes to General Pervez Mushraff, under the terms of the PCO, not the Constitution [1]. Six justices of the Supreme Court and nine High Court judges refused to take the new oath and retired [1].

Justice Abdul Hameed Dogar took the oath of Chief Justice, even after a 7-member Supreme Court Bench, including Chief Justice Iftikhar Muhammad Chaudhry, nullified the imposition of emergency, suspension of constitution, and Provisional Constitutional Order, instructing all the honourable judges not to take oath under the PCO, and all military personnel not to obey any illegal orders. [5]

Until November 2007, these judges were:

  • Chief Justice Mr. Justice Abdul Hameed Dogar
  • Mr. Justice Muhammad Nawaz Abbasi
  • Mr. Justice Faqir Muhammad Khokhar
  • Mr. Justice M. Javed Buttar
  • Mr. Justice Saiyed Saeed Ashhad.
  • Mr. Justice Ijaz-ul-Hassan
  • Mr. Justice Muhammad Qaim Jan Khan
  • Mr. Justice Mohammad Moosa K. Legari
  • Mr. Justice Ch. Ejaz Yousaf
  • Mr. Justice Muhammad Akhtar Shabbir
  • Mr. Justice Zia Perwez
  • Mr. Justice Mian Hamid Farooq
  • Mr. Justice Syed Sakhi Hussain Bokhari
  • Mr. Justice Syed Zawwar Hussain Jaffery

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

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

Until November 3 2007, the Chief Justice and other Judges of the Supreme Court were:

On March 15, 2009, the two years old lawyer movement that was struggling for restoration of the judiciary as it was constituted on November 02, 2007, called for a long march and a sit-in in Islamabad, the capital of Pakistan to achieve its goal. Before the procession could reach Islamabad, the Prime Minister Yousuf Raza Gilani appeared on the national television and announced unconditional restoration of the judiciary. On March 17, 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 the position of November 02, 2007 with immediate effect. Justice Iftikhar Mohammad Chaudhry was notified to re-assume his office on March 22, 2009. Justice Rana Bhagwandas, and Justice Falak Sher who were judges of the Supreme Court on November 02, 2007 had retired.

See also

References

  1. ^ a b c d Charles H. Kennedy, The Creation and Development of Pakistan’s Anti-terrorism Regime, 1997–2002 in Religious Radicalism and Security in South Asia (Satu P. Limaye, Robert G. Wirsing, Mohan Malik, eds.), p.387-413 (a publication of the Asia Pacific Center for Security Studies, Honolulu, Hawaï, Spring 2004).
  2. ^ Military takeover challenged in court, BBC, November 22, 1999
  3. ^ Pakistan court limits army rule, BBC
  4. ^ Sex Scandal involving Supreme Court Judges. Ghulam Hasnain, reporting from Islamabad for The Times, November 11, 2007, accessed November 21, 2007.
  5. ^ golden-historic-decision-by-supreme-court-of-pakistan/ Order of the Supreme Court of Pakistan November 3, 2007.

External links

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