Supreme Court of Pakistan
Encyclopedia
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.
(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.
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.
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.
Currently the Chief Justice of Supreme Court of Pakistan is Iftikhar Muhammad Chaudhry
.
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
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.
overthrew Nawaz Sharif by a military coup, the opposition challenged the legitimacy of the coup, asking the court to rule on its legality. On May 12, 2000 the
Court rendered a nuanced verdict 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.
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
.
, 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
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:
, 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.
(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.
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"
First time in the history of world a judgement has been made which doesn't apply to people making it.
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, on the ground that their appointment to the court was made without consulation with the Dejure Chief Justice of Pakistan.
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.
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.
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.
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
(Urdu
Urdu
Urdu is a register of the Hindustani language that is identified with Muslims in South Asia. It belongs to the Indo-European family. Urdu is the national language and lingua franca of Pakistan. It is also widely spoken in some regions of India, where it is one of the 22 scheduled languages and an...
: عدالت عظمیٰ) is the apex court in Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
's judicial hierarchy, the final arbiter of legal and constitutional disputes. The Supreme Court has a permanent seat in Islamabad
Islamabad
Islamabad is the capital of Pakistan and the tenth largest city in the country. Located within the Islamabad Capital Territory , the population of the city has grown from 100,000 in 1951 to 1.7 million in 2011...
. It has number of Branch Registries where cases are heard. It has a number of de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....
powers which are outlined in the Constitution
Constitution of Pakistan
The Constitution of the Islamic Republic of Pakistan is the supreme law of Pakistan. Known as the Constitution of 1973, it was drafted by the government of Zulfikar Ali Bhutto and, following additions by the opposition parties, was approved by the legislative assembly on April 10, 1973...
. 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 ConstitutionConstitution of Pakistan
The Constitution of the Islamic Republic of Pakistan is the supreme law of Pakistan. Known as the Constitution of 1973, it was drafted by the government of Zulfikar Ali Bhutto and, following additions by the opposition parties, was approved by the legislative assembly on April 10, 1973...
(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
Legal Framework Order
The Legal Framework Order, 2002 was issued by Pakistani president Pervez Musharraf in August 2002. It provided for the general elections of 2002 and the revival of the 1973 Constitution of Pakistan, but added numerous amendments to the Constitution...
made by the military.
De Jure Power
The Supreme Court has the explicit, de jureDe jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....
power to block the exercise of certain Presidential reserve powers. For example, under Article 58, the President
President of Pakistan
The President of Pakistan is the head of state, as well as figurehead, of the Islamic Republic of Pakistan. Recently passed an XVIII Amendment , Pakistan has a parliamentary democratic system of government. According to the Constitution, the President is chosen by the Electoral College to serve a...
may dismiss the National Assembly
National Assembly of Pakistan
The National Assembly of Pakistan is the lower house of the bicameral Majlis-e-Shura, which also compromises the President of Pakistan and Senate . The National Assembly and the Senate both convene at Parliament House in Islamabad...
(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 contextof Pakistani political history during which the army has seized power, declared martial law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the 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.
Court Composition
Unless President can record written reasons for deviating, the judges on the bench retire upon reaching the age of sixty five.Chief Justices of Pakistan
- List of past and current Chief Justices of Pakistan
Currently the Chief Justice of Supreme Court of Pakistan is Iftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry is the current Chief Justice of Pakistan.He became chief justice of Pakistan's Supreme Court in 2005 and soon became not only a central figure in the nation's political struggles but an icon to the country's legal profession and others campaigning for the rule of law...
.
Justices
The Supreme Court of Pakistan currently consists of following (According to seniority).| Name | Appointed | Retirement |
|---|---|---|
| Hon. Chief Justice Iftikhar Muhammad Chaudhry Iftikhar Muhammad Chaudhry Iftikhar Muhammad Chaudhry is the current Chief Justice of Pakistan.He became chief justice of Pakistan's Supreme Court in 2005 and soon became not only a central figure in the nation's political struggles but an icon to the country's legal profession and others campaigning for the rule of law... |
|
December 11, 2013 |
| Hon. Justice Mian Shakirullah Jan Mian Shakirullah Jan Justice Mian Sakirullah Jan is a justice in Supreme Court of Pakistan and a former Chief Justice of Peshawar High Court.-Early life:Justice Jan was born on 18 August 1947.-Education and Training:... |
July 29, 2004 | August 17, 2012 |
| Hon. Justice Tassaduq Hussain Jillani Tassaduq Hussain Jillani Justice Tassadduq Hussain Jillani is a justice in Supreme Court of Pakistan and a former justice of Lahore High Court.-Early life:Justice Jillani was born on July 6, 1949. His father name was Muhammad Ramzan Shah Jillani.-Education and training:... |
July 31, 2004 | July 5, 2014 |
| Hon. Justice Nasir-ul-Mulk Nasir-ul-Mulk Justice Nasir- ul-Mulk is a justice of Supreme Court of Pakistan and a former Chief Justice of Peshawar High Court.-Early life:Nasir ul Mulk was born on August 17, 1950 in Swat, Khyber-Pakhtunkhwa .-Edcuation and Training:... |
April 5, 2005 | August 15, 2015 |
| Justice Muhammad Sair Ali Khan Khattak | April 12, 2009 name=ThePakistaniNewsPaper20090412> |
December 11, 2011 |
| Justice Jawwad S Khawaja | June 4, 2009 |
September 9, 2015 |
| Justice Anwar Zaheer Jamali | August 1, 2009 | 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 |
PCO 1981 (General Zia ul Haq Martial Law)
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 |
PCO 1999 (General Prevez Musharaf First Martial Law)
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
- see Pakistani coup d'état 1999
PCO 2007 (General Prevez Musharaf Second Martial Law)
- See State of Emergency in Pakistan 2007
The attack on the Supreme Court by the Nawaz Sharif's men
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.
The Supreme Court under Musharraf
Furthermore, shortly after General Pervez MusharrafPervez Musharraf
Pervez Musharraf , is a retired four-star general who served as the 13th Chief of Army Staff and tenth President of Pakistan as well as tenth Chairman of the Joint Chiefs of Staff Committee. Musharraf headed and led an administrative military government from October 1999 till August 2007. He ruled...
overthrew Nawaz Sharif by a military coup, the opposition challenged the legitimacy of the coup, asking the court to rule on its legality. On May 12, 2000 the
Court rendered a nuanced verdict 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 NecessityNecessityIn U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
(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 AmendmentThirteenth Amendment to the Constitution of PakistanThe XIII Amendment to the Constitution of Pakistan was a short-time amendment to the Constitution of Pakistan, adopted by the elected Parliament of Pakistan in 1997 by the government of people elected Prime Minister Nawaz Sharif...
, 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 governedConsent of the governed"Consent of the governed" is a phrase synonymous with a political theory wherein a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised...
, 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)
- the doctrine of state Necessity
- 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.
- accepted the coup on the grounds of:
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.
The elections
Pakistani general election, 2002
General elections were held in Pakistan on 10 October 2002 during the military regime of Pervez Musharraf.-Parties and candidates:More than 70 parties, contested the election, the main parties were the Peoples Party Parliamentarians, Pakistan Muslim League-Nawaz Group, Muttahida Quami Movement ,...
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
Seventeenth Amendment to the Constitution of Pakistan
The Constitution Act, 2003 was an amendment to the Constitution of Pakistan passed in December 2003, after over a year of political wrangling between supporters and opponents of Pakistani President Pervez Musharraf....
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
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
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
Dictablanda
"Dictablanda" is a word used by political scientists to describe a dictatorship in which civil liberties are allegedly preserved rather than destroyed. The word dictablanda is a portmanteau of the Spanish words dictadura and blanda...
.
Reference against Chief Justice
On 9 March 2007, a presidential reference was served to the Chief Justice, Iftikhar Muhammad ChaudhryIftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry is the current Chief Justice of Pakistan.He became chief justice of Pakistan's Supreme Court in 2005 and soon became not only a central figure in the nation's political struggles but an icon to the country's legal profession and others campaigning for the rule of law...
, 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
State of Emergency
Immediately following the imposition of the state of emergency2007 Pakistani state of emergency
A state of emergency was declared by Pakistani President Pervez Musharraf on November 3, 2007, and lasted until December 15, 2007,during which time the constitution of Pakistan was suspended....
on November 3, 2007, the Chief Justice Iftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry is the current Chief Justice of Pakistan.He became chief justice of Pakistan's Supreme Court in 2005 and soon became not only a central figure in the nation's political struggles but an icon to the country's legal profession and others campaigning for the rule of law...
was removed from the Supreme Court and arrested by the troops belonging to the 111 brigade of Pakistan Army
Pakistan Army
The Pakistan Army is the branch of the Pakistani Armed Forces responsible for land-based military operations. The Pakistan Army came into existence after the Partition of India and the resulting independence of Pakistan in 1947. It is currently headed by General Ashfaq Parvez Kayani. The Pakistan...
sent by General Musharraf (who finally resigned in August 2008 under impeachment pressures
Movement to impeach Pervez Musharraf
The movement to impeach Pervez Musharraf was an August 2008 attempt by the Pakistan Peoples Party , the Pakistan Muslim League , Awami National Party , and Jamiat Ulema-e-Islam to force Pakistan's President Pervez Musharraf out of office....
).
Until November 3, 2007, the Chief Justice and other Judges of the Supreme Court were:
- Hon. Chief Justice Mr. Justice Iftikhar Mohammad Chaudhry (Restored on March 17, 2009)
- Hon. Mr. Justice Rana BhagwandasRana BhagwandasHis Lordship Mr. Justice Retired Rana Bhagwandas , a highly respected name of the Pakistani judiciary was a senior judge and former acting chief justice of the Supreme Court of Pakistan...
(Retired after deposed. Retired on December 20, 2007) - Hon. Mr. Justice Javaid IqbalJavaid IqbalJustice Javed Iqbal is a justice of the Supreme Court of Pakistan and a former Chief Justice of High Court of Balochistan.-Education:Justice Iqbal have done Masters in Arts in Political Science in 1969 and LL.B from Punjab University in 1968; Master of International Law...
(Restored on March 17, 2009) - Hon. Mr. Justice Abdul Hameed Dogar (Took oath under PCO on November 3, 2007)
- Hon. Mr. Justice Sardar Muhammad Raza KhanSardar Muhammad Raza KhanJustice Sardar Muhammad Raza Khan is a justice in Supreme Court of Pakistan and a former Chief Justice of Peshawar High Court. He was born in village Namli Maira District Abbottabad on the February 10, 1945.-Education and training:...
(Retook oath/reappointed on September 19, 2008 during democratic period) - Hon. Mr. Justice Khalil-ur-Rehman RamdayKhalil-ur-Rehman RamdayChief Honourable Justice Khalil-ur-Rehman Ramday is an ad-hoc judge of the Supreme Court of Pakistan. He remained permannet judge of Supreme Court from 2002 to 2010. He was born in Lahore on January 13, 1945 in the famous Ramday Arain family of Justice Mr. Muhammad Siddique as the fifth child and...
(Restored on March 17, 2009) - Hon. Mr. Justice Muhammad Nawaz AbbasiMuhammad Nawaz AbbasiMohammad Nawaz Abbasi is former justice of the Supreme Court of Pakistan and a former justice of Lahore High Court.-Life:Mohammad Nawaz Abbasi was born in Murree on June 7, 1943....
(Took oath under PCO on November 3, 2007) - Hon. Mr. Justice Faqir Muhammad KhokharFaqir Muhammad KhokharFaqir Muhammad Khokhar is a former judge of the Supreme Court of Pakistan.-Judicial career:He started off as a lawyer after doing his B.A./L.L.B. He was elevated to the High Court on December 10, 1996, and then to the...
(Took oath under PCO on November 3, 2007) - Hon. Mr. Justice Falak Sher (Retired after deposed. Retired on 21 September 2008)
- Hon. Mr. Justice Mian Shakirullah JanMian Shakirullah JanJustice Mian Sakirullah Jan is a justice in Supreme Court of Pakistan and a former Chief Justice of Peshawar High Court.-Early life:Justice Jan was born on 18 August 1947.-Education and Training:...
(Retook oath/reappointed on September 5, 2008 during democratic period) - Hon. Mr. Justice M. Javed ButtarMuhammad Javed ButtarMuhammad Javed Buttar is a former justice of the Supreme Court of Pakistan, currently he is serving as a member of Board of Directors of National Asset Management Company Limited.-Early life:...
(Took oath under PCO on November 3, 2007) - Hon. Mr. Justice Tassaduq Hussain JillaniTassaduq Hussain JillaniJustice Tassadduq Hussain Jillani is a justice in Supreme Court of Pakistan and a former justice of Lahore High Court.-Early life:Justice Jillani was born on July 6, 1949. His father name was Muhammad Ramzan Shah Jillani.-Education and training:...
(Retook oath/reappointed on September 5, 2008 during democratic period) - Hon. Mr. Justice Saiyed Saeed Ashhad (Took oath under PCO)
- Hon. Mr. Justice Nasir-ul-MulkNasir-ul-MulkJustice Nasir- ul-Mulk is a justice of Supreme Court of Pakistan and a former Chief Justice of Peshawar High Court.-Early life:Nasir ul Mulk was born on August 17, 1950 in Swat, Khyber-Pakhtunkhwa .-Edcuation and Training:...
(Retook oath/reappointed on September 19, 2008 during democratic period) - Hon. Mr. Justice Raja Fayyaz AhmedRaja Muhammad Fayyaz AhmadJustice Raja Muhammad Fayyaz Ahmad is a judge in Supreme Court of Pakistan and is a former Chief Justice of High Court of Balochistan.-Early life:...
(Restored on March 17, 2009) - Hon. Mr. Justice Chaudhry Ijaz AhmedChaudhry Ijaz AhmedJustice Chaudhry Ijaz Ahmed is a justice in the Supreme Court of Pakistan and a former justice of Lahore High Court.-Early life:Mr. Justice Chaudhry Ijaz Ahmed was born on May 5, 1945 in Chak No. 15. SB, Tehsil Bhalwal District Sargodha...
(Restored on March 17, 2009) - Hon. Mr. Justice Syed Jamshed Ali (Retook oath/reappointed on September 5, 2008 during democratic period)
- Hon. Mr. Justice Hamid Ali Mirza (Ad-hoc judge)(Refused oath under PCO)
- Hon. Mr. Justice Ghulam Rubbani (Ad-hoc judge)(Refused oath under PCO)
Sex Scandal involving Supreme Court Judges
According to The TimesThe Times
The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...
, 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.
Supreme Court composition under Musharraf after November 3, 2007
The Supreme Court of Pakistan consisted of the following who took under the Provisional Constitutional OrderProvisional Constitutional Order
A Provisional Constitutional Order, or PCO, is an extra-constitutional order that suspends either wholly or partially the Constitution of Pakistan...
(PCO) of November 3, 2007.
These judges were:
- Hon. Chief Justice Mr. Justice Abdul Hameed Dogar
- Hon. Justice Muhammad Nawaz Abbasi
- Hon. Justice 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 February 8, 2008)
Justice Abdul Hameed Dogar took the oath of Chief Justice, even after a 7-member Supreme Court Bench, including Chief Justice Iftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry
Iftikhar Muhammad Chaudhry is the current Chief Justice of Pakistan.He became chief justice of Pakistan's Supreme Court in 2005 and soon became not only a central figure in the nation's political struggles but an icon to the country's legal profession and others campaigning for the rule of law...
, 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.
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"
Restoration of Judges
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.COMPOSITION OF BENCH FOR CONSTITUTION PETITION NO. 08 and 09 OF 2009
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.
| 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 |
CONSTITUTION PETITION NO. 08 and 09 OF 2009
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 Faqir Muhammad Khokhar Faqir Muhammad Khokhar is a former judge of the Supreme Court of Pakistan.-Judicial career:He started off as a lawyer after doing his B.A./L.L.B. He was elevated to the High Court on December 10, 1996, and then to the... |
January 10, 2002 | 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 |
| Justice M. Javed Buttar Muhammad Javed Buttar Muhammad Javed Buttar is a former justice of the Supreme Court of Pakistan, currently he is serving as a member of Board of Directors of National Asset Management Company Limited.-Early life:... |
July 29, 2004 | 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 |
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, 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 | took oath on PCO on November 6, 2007. Was a retired Chief Justice of the Federal Shariat Court. 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 | 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 | Retired Lahore High Court Judge | 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 Sardar Muhammad Aslam Sardar Muhammad Aslam is a former Justice of Lahore High Court, jurist and professional lawyer from Pakistan. He also was justice in Supreme Court of Pakistan, a former Chief Justice of Islamabad High Court. However, as result of Constitution Petition No. 09 Of 2009 and Constitution Petition No... |
March 7, 2009 | 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. |
Controversial Aspect of the Decision
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.
- Those who were elevated to higher courts and initially took oath on PCO.
- Those who were elevated to higher courts after restoration of constitution, and were appointed by General Pervez MusharrafPervez MusharrafPervez Musharraf , is a retired four-star general who served as the 13th Chief of Army Staff and tenth President of Pakistan as well as tenth Chairman of the Joint Chiefs of Staff Committee. Musharraf headed and led an administrative military government from October 1999 till August 2007. He ruled...
. - Those who were elevated to higher courts after restoration of constitution, and were appointed by Asif Ali ZardariAsif Ali ZardariAsif Ali Zardari is the 11th and current President of Pakistan and the Co-Chairman of the ruling Pakistan Peoples Party . He is also the widower of Benazir Bhutto, who served two nonconsecutive terms as Prime Minister....
.
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
Seventeenth Amendment to the Constitution of Pakistan
The Constitution Act, 2003 was an amendment to the Constitution of Pakistan passed in December 2003, after over a year of political wrangling between supporters and opponents of Pakistani President Pervez Musharraf....
.
This decision have resulted in situation where:
- Newly appointed justices who never took any sort of oath on any PCO have been removed.
- Sitting justices who took oath on PCO 2007 are still acting as justices, though their cases are to be sent to Supreme Judicial Council.
- Sitting justices who accepted reappointed and took oath from Justice Dogar as still acting as justices of court with no action.
- Justices who took oath on PCO of 1999 are still functioning as justices of higher judiciary.
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:-
- Mr. Justice Pervez Ali Chawla
- Mr. Justice Habib Ullah Shakir
- Mr. Justice Nazir Ahmed Ghazi
- Mr. Justice Abdul Sattar Goraya
- Mr. Justice Syed Ihtasham Qadir Shah
- Justice Ms. Jamila Jahanoor Aslam
- Mr. Justice Mahmood Akhtar Khan
- Mr. Justice Jamshed Rahmat Ullah
- Mr. Justice Pervez Inayat Malik
- Mr. Justice Arshad Mahmood
- Mr. Justice Irfan Qadir
- Mr. Justice Syed Zulfiqar Ali Bukhari
- Mr. Justice Ch. Naeem Masood
- Mr. Justice Anwar-ul-Haq Pannu
- Mr. Justice Muhammad Shafqat Khan Abbasi
- Mr. Justice Imtiaz Rasheed Siddiqui
- Mr. Justice Bin Yamin
- Mr. Justice Khalid Ali Z. Qazi
- Mr. Justice Salman Ansari
- Mr. Justice Abdul Rehman Farooq Pirzada
- Mr. Justice Abdul Rasheed Klwar
- Mr. Justice Zafar Ahmed Khan Sherwani
- Mr. Justice Syed Mehmood Alam Rizvi
- Justice Ms. Soofia Latif
- Mr. Justice Maqbool Ahmed Awan
- Mr. Justice Safdar Ahi Bhutto
- Mr. Justice Moharram G. Baloch
- Mr. Justice Malik Muhammad Aqil
- Mr. Justice Syed Shafaqat Ali Shah Masoomi
- Mr. Justice Muhammad Iqbal Mahar
- Mr. Justice Khadim Hussain M. Sheikh
- Mr. Justice Muhammad Ismail Bhutto
- Mr. Justice Arshad Siraj Memon
- Mr. Justice Aamir Raza Naqvi
- Mr. Justice Muhammad Karim Khan Agha
- Mr. Justice Salman Talibuddin
- Mr. Justice Shaji Rehman Khan
- Mr. Justice Ghulam Mohayuddin Malik
- Mr. Justice Ziauddin Khattak
- Mr. Justice Syed Mussaddiq Hussain Gilani
- Mr. Justice Syed Yahya Zahid Gilani
- Mr. Justice Muhammad Alam Khan
- Mr. Justice Mazhar Hussain Minhas
- Mr. Justice Muhammad Ashraf Bhatti
- Mr. Justice Rana Zahid Mehmood
- Mr. Justice Kazim Ali Malik
- Mr. Justice Hafiz Tariq Nasim
- Mr. Justice Khalil Ahmad
- Mr. Justice MA Zafar
- Mr. Justice Malik Saeed Ejaz
- Mr. Justice Syed Shaheen Masud Rizvi
- Mr. Justice Ali Akbar Qureshi
- Mr. Justice Muhammad Ahsan Bhoon.
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.
Review Petition Filed by Lahore High Court NON-PCO Removed Judges
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.
Key Controversial points
According to news article inApex 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.
See also
- PakistanPakistanPakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
- Constitution of PakistanConstitution of PakistanThe Constitution of the Islamic Republic of Pakistan is the supreme law of Pakistan. Known as the Constitution of 1973, it was drafted by the government of Zulfikar Ali Bhutto and, following additions by the opposition parties, was approved by the legislative assembly on April 10, 1973...
- Chief Justice of Pakistan
- Punjab Bar CouncilPunjab Bar CouncilThe Punjab Bar Council is a supreme statutory & Deliberative assembly of lawyers in Punjab for safeguarding the rights, interests and privileges of practicing lawyers, regulating their conduct and helping in the administration of justice and it is also 1st biggest Bar Council of Pakistan...
- Pakistan Bar CouncilPakistan Bar CouncilPakistan Bar Council was established by the Parliament in 1973 under the Legal Practitioners and Bar Councils Act. It is the highest elected body of lawyers. it has twenty members elected throughout the country representing each province. The Members of the Pakistan Bar Council are elected on the...
- Prime Minister of PakistanPrime Minister of PakistanThe Prime Minister of Pakistan , is the Head of Government of Pakistan who is designated to exercise as the country's Chief Executive. By the Constitution of Pakistan, Pakistan has the parliamentary democratic system of government...
- Foreign Minister of PakistanForeign Minister of PakistanThe Foreign Minister of Pakistan heads the Ministry of Foreign Affairs. The current Foreign Minister is Hina Rabbani Khar who took office as Minister of State for Foreign Affairs on 11 February 2011, and as full Minister of Foreign Affairs on 20 July, 2011...
- Finance Minister of PakistanFinance Minister of PakistanThe Finance Minister of Pakistan heads the Ministry of Finance and serves in the Prime Minister's cabinet. The Minister is required to be a member of the Parliament.The current finance minister is Abdul Hafeez Shaikh...
- Interior Minister of Pakistan
- Civil decorations of PakistanCivil decorations of PakistanThe Pakistan Civil Awards were established on March 19, 1957, following the proclamation of Pakistan as an independent Republic on March 23, 1956. The announcement of civil awards is generally made once a year on Independence Day, August 14, and their investiture takes place on the following...
- Law Minister of PakistanLaw Minister of Pakistanhttp://www.molaw.gov.pk/The Law Minister of Pakistan heads the Ministry of Law. He serves in the cabinet of the Prime Minister. The present law minister is Senator Mola Baksh Chandio, He was made Law Minister in April 2011...
- President of PakistanPresident of PakistanThe President of Pakistan is the head of state, as well as figurehead, of the Islamic Republic of Pakistan. Recently passed an XVIII Amendment , Pakistan has a parliamentary democratic system of government. According to the Constitution, the President is chosen by the Electoral College to serve a...
- Lists of Pakistan Supreme Court cases
- Islamabad High CourtIslamabad High Court-History:Islamabad High Court located in Islamabad the capital of Pakistan was established under a presidential order on December 14, 2007. However its creation was delayed because of the stay order issued by the Lahore High Court after its establishment was challenged there. But Supreme Court of...
- Peshawar High CourtPeshawar High CourtThe Peshawar High Court is the highest judicial institution of Khyber-Pakhtunkhwa. It is situated at the provincial capital Peshawar.-History:...
- Balochistan High CourtBalochistan High CourtThe High Court of Balochistan is the highest judicial institution of Balochistan, Pakistan. The court is formally known as High Court of Balochistan...
- Sindh High CourtSindh High CourtThe High Court of Sindh is the highest judicial institution of Sindh province. Established in 1906, it is situated at provincial capital Karachi. Apart from being the highest Court of Appeal for Sindh in civil and criminal matters, the Court was the District Court and the Court of Session in...
- Lahore High CourtLahore High CourtThe Lahore High Court is based in Lahore, Punjab, Pakistan. It was established as a high court on March 21, 1919. The Lahore High Court has jurisdiction over Punjab...
- Movement for Rule of Law
- Court system of PakistanCourt system of PakistanCourt system of Pakistan is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial.-Structure of courts in Pakistan:...
- Supreme Court and Martial Law 1999
- Supreme Court and Emergency 2007
External links
- Supreme Court of Pakistan
- Constitutional 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