| Supreme Court of Pakistan | |
|---|---|
| عدالت عظمیٰ | |
| Established | March 2, 1956 |
| Jurisdiction | 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 | Iftikhar Muhammad Chaudhry |
| Since | 30 June 2005 |
| Lead position ends | Incumbent |
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 has a permanent seat in Islamabad. It has number of Branch Registries where cases are heard. 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.
Contents |
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:
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.
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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.
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.
Unless President can record written reasons for deviating, the judges on the bench retire upon reaching the age of sixty five.
Currently the Chief Justice of Supreme Court of Pakistan is Iftikhar Muhammad Chaudhry.
The Supreme Court of Pakistan currently consists of following (According to seniority).
| Name | Appointed | Retirement |
|---|---|---|
| Hon. Chief Justice Iftikhar Muhammad Chaudhry | December 11, 2013[2] | |
| Hon. Justice Mian Shakirullah Jan | July 29, 2004[1] | August 17, 2012[2] |
| Hon. Justice Tassaduq Hussain Jillani | July 31, 2004[1] | July 5, 2014[2] |
| Hon. Justice Nasir-ul-Mulk | April 5, 2005[2] | August 15, 2015[2] |
| Justice Muhammad Sair Ali Khan Khattak | April 12, 2009[3] | December 11, 2011 |
| Justice Jawwad S Khawaja | June 4, 2009[4] | September 9, 2015[5] |
| Justice Anwar Zaheer Jamali | August 1, 2009[6] | December 30, 2016 |
| Justice Khilji Arif Hussain | September 7, 2009 | April 12, 2014 |
| Justice Tariq Parvez Khan | October, 2009 | February 14, 2013 |
| Justice Mian Saqib Nisar | February 18, 2010 | January 17, 2019 |
| Justice Asif Saeed Khan Khosa | February 18, 2010 | December 20, 2019 |
| Justice Sarmad Jalal Osmany | February 14, 2011 | October 12, 2015 |
| Justice Amir Hani Muslim | February 14, 2011 | March 31, 2017 |
The first ever PCO was declared by General Zia ul Haq on March 24, 1981.
| Name | Appointed | Normal Retirement | Action on PCO oath |
|---|---|---|---|
| Hon. Justice Dorab Patel | ? | ? | refused PCO oath, asked to resign |
| Hon. Justice 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 |
The second PCO in the history of Pakistan was declared by General Pervaiz Mushraf on October 14, 1999. At the time of procolamation of PCO, the judiciary was not asked to take oath under PCO. On January 26, 2000 an order "Oath of Office (Judges) Order, 2000" was issued that required that judiciary take oath of office under PCO. Other Supreme Court Judges Did not Take Oath But Justice Iftikhar Muhammad Chaudhary took Oath By P.C.O ... He Has Never taken Oath by the Constitution
In November 1997, Pakistan grappled with its worst-ever constitutional crisis when an unruly mob stormed into the supreme court, forcing Chief Justice Sajjad Ali Shah to adjourn the contempt of court case against Prime Minister Nawaz Sharif. Hundreds of PML(N) supporters and members of its youth wing, the Muslim Students Front (MSF), breached the police cordon around the courthouse when defence lawyer S.M. Zafar was arguing his case.
A journalist rushed into the courtroom and warned the bench of an impending attack. Whereupon, the chief justice got up abruptly, thanked Zafar and adjourned the hearing. While judicial members left the courtroom soon after, the mob entered it shouting slogans, and damaged furniture.
The unruly mob, led by ruling party member from Punjab Sardar Naseem and Colonel (retired) 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 beat up Pakistan Peoples Party senator Iqbal Haider. The police managed to restore normalcy after baton charging and teargassing the mob, both inside and outside the courthouse. The court which assembled at 9:45 a.m., could continue the proceedings for only about 45 minutes.
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.[7] On May 12, 2000 the Court rendered a nuanced verdict [8] and -
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.[9] 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 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.
On 9 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 20 July 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:
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.[10]
The Supreme Court of Pakistan consisted of the following who took under the Provisional Constitutional Order (PCO) of November 3, 2007.
These judges were:
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.[11]
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. This Full Court judgement is written by Chief Justice Abdul Hameed Dogar. Other members of the Full Court were Justice Ijaz-ul-Hassan, Justice Mohammad Qaim Jan Khan, Justice Mohammad Moosa K. Leghari, Justice Chaudhry Ejaz Yousaf, Justice Muhammad Akhtar Shabbir and Justice Zia Perwez. The judgement wrote, "'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"[12]
On March 15, 2009, the two years old lawyer movement that was struggling for restoration of the judiciary as it was constituted on November 2, 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 2, 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 2, 2007 had retired.
Out of 14 Judges that gave decision for not taking oath on PCO, 12 are themselves PCO judges and interestingly they ordered that judgement doesn't apply to themselves. First time in the history of world a judgement has been made which doesn't apply to people making it.[13]
| Name | Status |
|---|---|
| Mr. Justice Iftikhar Muhammad Chaudhry, CJ. | Took Oath on PCO as Chief Justice Balochistan High Court on January 26, 2000 |
| Mr. Justice Javed Iqbal | Took Oath on PCO as Judge of Balochistan High Court on January 26, 2000 |
| Mr. Justice Sardar Muhammad Raza Khan | Took Oath on PCO as Judge of Peshawar High Court on January 26, 2000 |
| Mr. Justice Khalil-ur-Rehman Ramday | Took Oath on PCO as Judge of Lahore High Court on January 26, 2000 |
| Mr. Justice Mian Shakirullah Jan | Took Oath on PCO as Judge of Peshawar High Court on January 26, 2000 |
| Mr. Justice Tassaduq Hussain Jillani | Took Oath on PCO as Judge of Lahore High Court on January 26, 2000 |
| Mr. Justice Nasir-ul-Mulk | Took Oath on PCO as Judge of Peshawar High Court on January 26, 2000 |
| Mr. Justice Raja Fayyaz Ahmed | Took Oath on PCO as Judge of Balochistan High Court on January 26, 2000 |
| Mr. Justice Ch. Ijaz Ahmed | Took Oath on PCO as Judge of Lahore High Court on January 26, 2000 |
| Mr. Justice Ghulam Rabbani | Took Oath on PCO as Judge of Sindh High Court on January 26, 2000 |
| Mr. Justice Sarmad Jalal Osmany | Took Oath on PCO as Judge of Sindh High Court on January 26, 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 January 26, 2000 |
As an after effect of the July 31, 2009 decision handed down in case of constitutional petition no, 08 and 09 of 2009, the following justices, whose cases were to be referred to Supreme Judicial Council resigned from the Supreme Court of Pakistan.
| Name | Appointed | Status on Nov 2, 2007 | PCO oath, Result of Judgement |
|---|---|---|---|
| Justice Faqir Muhammad Khokhar | January 10, 2002[1] | Supreme Court Judge | He took PCO Oath on November 3, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", his case was to be referred to Supreme Judicial Council. He resigned from the court on August 5, 2009. His normal retirement would have been April 15, 2010[2] |
| Justice M. Javed Buttar | July 29, 2004[1] | Supreme Court Judge | He took PCO Oath on November 3, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", his case was to be referred to Supreme Judicial Council. He resigned from the court on August 5, 2009. His normal retirement would have been November 15, 2013[2] |
In addition to the above justices, also, as result of CONSTITUTION PETITION NO. 08 OF 2009 as decided on July 31, 2009. the following justices were removed from the Supreme Court of Pakistan,[14] on the ground that their appointment to the court was made without consulation with the Dejure Chief Justice of Pakistan.
| Name | Appointed | Status on Nov 2, 2007 | PCO oath, Result of Judgement |
|---|---|---|---|
| Justice Muhammad Qaim Jan Khan | November 6, 2007 | Peshawar High Court Judge | took PCO oath, elevated to Supreme Court on November 6, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and deemed to have retired as a judge of PHC. |
| Justice Ijaz-ul-Hassan | November 6, 2007 | Peshawar High Court Judge | took oath on PCO on November 6, 2007.As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and deemed to have retired as a judge of PHC. |
| Justice Mohammad Moosa K. Legari | November 6, 2007 | Judge Sindh High Court | took oath on PCO on November 6, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and deemed to have retired as a judge of SHC. |
| Justice Ch. Ejaz Yousaf | November 6, 2007 | Chairman Press Council[15] | took oath on PCO on November 6, 2007. Was a retired Chief Justice of the Federal Shariat Court.[15] As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court. |
| Justice Zia Perwez | November 13, 2007 | Judge Sindh High Court | took oath on PCO on November 13, 2007As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and reverted as judge of SHC. |
| Justice Mian Hamid Farooq | December 10, 2007 | Lahore High Court Judge | took PCO oath, elevated to Supreme Court on December 10, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and deemed to have retired as a judge of LHC. |
| Justice Syed Sakhi Hussain Bokhari | December 10, 2007 | Lahore High Court Judge | took PCO oath, elevated to Supreme Court on December 10, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and reverted as a judge of LHC. |
| Justice Syed Zawwar Hussain Jaffery | December 10, 2007 | Retired Sindh High court Judge | took oath on PCO on December 10, 2007. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court. |
| Justice Sheikh Hakim Ali | February 8, 2008[16] | Lahore High Court Judge | took PCO oath, elevated to Supreme Court on February 8, 2008(after reinstatement of constitution). As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and deemed to have retired as a judge of LHC. |
| Justice Muhammad Furrukh Mahmud | February 8, 2008[17] | Retired Lahore High Court Judge[2] | took oath after reinstatement of constitution. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court. |
| Hon. Sarmad Jalal Osmany | September 19, 2008 | Sindh High Court Judge | refused PCO oath, appointed to Supreme Court on September 19, 2008. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and reverted as a judge of SHC. Appointed as Chief Justice of Sindh High Court on August 1, 2009 |
| Justice Sardar Muhammad Aslam | March 7, 2009[18] | Lahore High Court Judge | took PCO oath on November 3, 2007, Elevated to Supreme Court on March 7, 2009. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and deemed to have retired as a judge of LHC. |
The decision of the court, summarily removed all justices of higher judiciary who were not part of it as on November 2, 2007. There removal was so ordered on ground that advice of de-jure Chief Justice of Supreme Pakistan was not obtained in these cases. In the same decision the court had held the de-jure Chief Justice between the period of November 3, 2007 and March 22, 2009 was Justice Chaudhry.
There were three groups of these removed justices.
The Supreme Court bench that handed out the decision in constitutional petition no, 08 and 09 of 2009, consisted of justices all of whom had taken oath on PCO of 1999 themselves, while already being sitting justices of higher judiciary and have taken constitutional oath. This PCO of 1999 and decision subsequently made on basis of this PCO, were given constitutional protection by 17th amendment.
This decision have resulted in situation where:
Critics of the decision hold position that PCO Judges are still working and non PCO judges have been sacked, packed and sent home. The name of these judges who took oath under the constitution are as under:-
The aforesaid 53 judges have never ever taken oath under the PCO. They have been ousted and this aspect of the decision has been declared to be a fight between post November 3 PCO judges and post October 12 PCO judges which has resulted in ouster of judges who took oath only under the Constitution of Pakistan and never ever under the PCO.
In Lahore, removed ad hoc judges of Lahore High Court have filed several petitions in the Supreme Court for review of its July 31 unfair judgment, which had sent 76 judges of Supreme Courts and High Courts immediately home.
They have submitted 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 in consequence of consultation required under the Constitution.They accepted the offer and took oath after when emergency was lifted. They never took oath under any PCO and continued performing the functions as judges of the high court till the passing of the July 31 judgment.
Further in Lahore High Court their selection was made by Lahore High Court Chief Justice,Justice Zahid Hussain, who is still serving judge of Supreme Court of Pakistan and interestingly his case is also not being heard in Supreme Judicial Counsel.
Further It was submitted in the petition that neither the sacked judges were made party in the July 31 decision nor had the court called for the comments of the sacked judges,Concerned Judges were not even aware about the November 3, 2007 decision passed by the Supreme Court. Moreover, no copy of the decision was either sent to the high court or to the judges concerned and Judges took oath according Article 189 of the Constitution.
They have prayed for the review of impugned judgment of the Supreme Court because, they argued, it had been passed in violation of the universally accepted principle of audi altram paltrem and they had been condemned unheard.
According to news article in [19] Apex court has applied the July 31 judgement with retrospective effect from November 3, 2007. The 14-member SC bench has, however, not applied the sanction to the judges who had taken oath under the PCO in 1999 as most of the members of SC bench are themselves 1999 PCO judges and some of them haven't even taken fresh oath.
If taking oath under the PCO was declared illegal and the principle is applied with retrospective effect on those who took oath on November 3, 2007, it should also apply on the members of the bench that gave the July 31 judgement.
The July 31 judgement is also inconsistent with the principles laid down in Malik Asad Ali’s case wherein it has been held that the chief justice is also bound by the judgement (Malik Asad Ali’s case) and former chief justice Sajjad Ali Shah of Supreme Court was removed from office on the same ground.
The interest of the members of the bench is involved in giving the July 31 judgement as they have declared their holding of office as constitutional and lawful. The judgement would thus fall in the category of self-serving judgement.
Unconstitutional Justice Abdul Hamid Dogar held the office of the chief justice until his retirement on March 24, 2009. Some of the SC judges, who performed their duties under Justice Dogar, were also members of the SC bench that gave the July 31 verdict; they could not have been a party to the finding that he was never the chief justice of Pakistan.
The present chief justice, Justice Iftikhar Hussain Chaudhry also accepted the stance of the government that Justice Dogar was the chief justice until his retirement as he assumed his office after his retirement.
July 31 judgement had made exception by declaring the oath of the office administered to President Asif Ali Zardari by Justice Dogar as an administrative act of the chief justice. If administration of oath by Justice Dogar to the president was an administrative act how could such administration of oath to judges by him be treated unconstitutional?
Former Lahore High Court Chief Justice, Justice Syed Zahid Hussain, who took oath under the PCO and was appointed as the LHC chief justice in consultation with Justice Dogar continued to act as such even after assumption of the office by Chief Justice Iftikhar Muhammad Chaudhry.He had been elevated as the judge of the Supreme Court and saved from the effects of July 31 judgement without any rational reason.
Similarly, judges’ case cropped up on appointment of the present Chief Justice of Federal Shariat Court as a judge of the Sindh High Court in 2007. He was appointed as the federal law secretary with the consent of Justice Dogar and the chief justice of the Federal Shariat Court with the consent of Justice Iftikhar.
Justice Sardar Muhammad Raza Khan, Justice Tassadaq Hussain Jilani, Justice Shakirullah Jan, Justice Nasirul Mulk and Justice Sarmad Jallal Usmani, who were members of the 14-member Supreme Court Full Bench, that gave the July 31 judgement, had been appointed with the consultation of Justice Dogar. Similarly, four LHC judges, eight Sindh High Court judges and three Peshawar High Court judges had been appointed in consultation with Unconstitutional Justice Abdul Hamid Dogar but had been given protection in the July 31 judgement. In September 27, 2011, the official website of supreme court of Pakistan was hacked by an unknown person. The hacked website mentions derogatory remarks about the Chief Justice Iftikhar Mohammad Chaudhry.
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