History of the Supreme Court of Pakistan

The History of the Supreme Court of Pakistan, organised by the Chief Justice of Pakistan, follows from its constitutional establishment in 1947 till its recent events. The Supreme Court of Pakistan is the highest appellate court of the country and court of last resort— the final arbiter of the law and the Constitution.^[1]

The judicial complex of the Supreme Court in Islamabad.

Having established in 1948 as the Federal Court, the Supreme Court's constitutional restructure and recreation was reviewed by the 1956 articles; it has retained its name and jurisdiction through the successive legal instruments since 1973 convention.^[2] The Supreme Court enjoys the constitutional and jurisdictional supremacy over any court in the Court system of the country where it exercises original, appellate and review jurisdiction.^[3] It possesses exclusive original jurisdiction for the settlement of intergovernmental disputes between federal and provisional governments and high courts Inter se.^[3] Since Pakistan's establishment in 1947, the Supreme Court has played a prominent role in country's events, and its decisions ultimately deciding the fate of the country.^[4]

Transient period

Early years (1947–1960)

Upon the establishment of Pakistan, the Founder of Pakistan and Governor-General approved the appointment of Sir Abdul Rashid as the nation's first Chief Justice in 1948.^[5] Justice Sir Rashid was succeeded by Justice Muhammad Munir in 1954. Perhaps, the most controversial case of at that time was the Maulvi Tamizuddin Khan vs. the Governor-General, in which the Supreme Court solidified the "Doctrine of necessity" by well quoted by Chief Justice Munir: Relying on the Bracton's maxim, that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing."^[6]

Another major case that was heard by the Supreme Court bench led by Chief Justice Muhammad Shahabuddin was on 7 October 1958.^[7] The Chief Justice Shahabuddin bench heard "The State vs. Dosso & anor.", under which the majority of Chief Justice Shahabuddin bench provided the legal validation of the martial law imposed by President of Pakistan Iskander Mirza.^[7] In further, President Mirza was dismissed in two weeks by Chief of Army Staff General Ayub Khan whose actions was also to be held valid by Chief Justice Shahabuddin's court.^[7]

Provisional Constitutional Order and Supreme Court

Main article: Provisional Constitutional Order

PCO 1981 (General Zia ul Haq Martial Law)

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

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

Shariat Appellate Bench

Established by General Muhammad Zia ul-Haq in 1980, the Shariat Appellate Bench is composed of three Muslim Judges of the Supreme Court,^[8] and two ad hoc judges drawn either from the Federal Shariat Court or from among the Ulema.^[9] Decisions made the Federal Shariat Court may be appealed to the Appellate Bench, as the Bench is the final authority on Islamic law in Pakistan.^[10]

PCO 1999 (General Pervez Musharraf First Martial Law)

The second PCO in the history of Pakistan was declared by General Pervez Musharraf on 14 October 1999.^[11] When the PCO was proclaimed, at first the judiciary was not asked to take an oath.^{[clarification needed]} On 26 January 2000 Musharraf issued an order "Oath of Office (Judges) Order, 2000" that required the judiciary to take oath of office under the PCO. The then Chief Justice Saeeduzzaman Siddiqui and 5 other judges of the Supreme Court refused to take any oath in contravention to the oath they took under the 1973 Constitution, when they became judges. Majority of the judges had more than 3 years remaining in their office. Refusing to take oath deprived them from continuing as judges, which was later termed as un-constitutional move by General Musharraf.^[12]

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

see Pakistani coup d'état 1999

PCO 2007 (General Pervez Musharraf Second Martial Law)

See also: State of Emergency in Pakistan 2007

The attack on the Supreme Court in 1997

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

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

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

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

The Supreme Court under Musharraf

Shortly after General Musharraf overthrew Sharif in the 1999 Pakistani coup d'état, the opposition challenged the legitimacy of the coup and asked the court to rule on its legality.^[13] On 12 May 2000 the Court rendered a nuanced verdict.^[11][14]

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

Although the government, before this judgement, had not given a timetable for the restoration of democracy – having argued that it needed an indefinite and possibly prolonged time to reform the country – Musharraf publicly submitted to the Court's judgement.^[15] The elections were duly held in October 2002 as ordered and the Constitution was revived. However, Musharraf later decided to retain power and enacted the Seventeenth Amendment in December 2003, largely incorporating the 2002 Legal Framework Order into the Constitution.^[11]

Reference against Chief Justice

On 9 March 2007 a presidential reference was served to the Chief Justice, Iftikhar Muhammad Chaudhry, attempting to suspend him. The government ordered him to go on compulsory leave, but on 20 July 2007 the Supreme Court unanimously overturned the compulsory leave order and by a 10–13 majority also ordered Chaudhry reinstated as Chief Justice.^[11]

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

State of Emergency

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

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

• Hon. Chief Justice Mr. Justice Iftikhar Mohammad Chaudhry (Restored on 17 March 2009)
• Hon. Mr. Justice Rana Bhagwandas (Retired after deposed. Retired on 20 December 2007)
• Hon. Mr. Justice Javaid Iqbal (Restored on 17 March 2009)
• Hon. Mr. Justice Abdul Hameed Dogar (Took oath under PCO on 3 November 2007)
• Hon. Mr. Justice Sardar Muhammad Raza Khan (Retook oath/reappointed on 19 September 2008 during democratic period)
• Hon. Mr. Justice Khalil-ur-Rehman Ramday (Restored on 17 March 2009)
• Hon. Mr. Justice Muhammad Nawaz Abbasi (Took oath under PCO on 3 November 2007)
• Hon. Mr. Justice Faqir Muhammad Khokhar (Took oath under PCO on 3 November 2007)
• Hon. Mr. Justice Falak Sher (Retired after deposed. Retired on 21 September 2008)
• Hon. Mr. Justice Mian Shakirullah Jan (Retook oath/reappointed on 5 September 2008 during democratic period)
• Hon. Mr. Justice M. Javed Buttar (Took oath under PCO on 3 November 2007)
• Hon. Mr. Justice Tassaduq Hussain Jillani (Retook oath/reappointed on 5 September 2008 during democratic period)
• Hon. Mr. Justice Saiyed Saeed Ashhad (Took oath under PCO)
• Hon. Mr. Justice Nasir-ul-Mulk (Retook oath/reappointed on 19 September 2008 during democratic period)
• Hon. Mr. Justice Raja Fayyaz Ahmed (Restored on 17 March 2009)
• Hon. Mr. Justice Chaudhry Ijaz Ahmed (Restored on 17 March 2009)
• Hon. Mr. Justice Syed Jamshed Ali (Retook oath/reappointed on 5 September 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 Justices

According to The Times, the justices who pledged allegiance to Musharraf had earlier been caught engaging in sexual acts with prostitutes. The article alleged that photographs of the judges engaging in sexual acts were used to blackmail the judges to take the oath of allegiance and make rulings favourable to the military.^[16]

Supreme Court composition under Musharraf after 3 November 2007

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

• 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 8 February 2008)

Justice Abdul Hameed Dogar took the oath of Chief Justice even after a 7-member Supreme Court that included Chief Justice Chaudhry nullified the imposition of emergency, suspension of constitution, and PCO. The Court instructed the justices not to take oath under the PCO, and all military personnel not to obey any illegal orders.^[17]

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.^[11] This judgement was made by the full court and written by Chief Justice Abdul Hameed Dogar. According to the judgement, "The learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction".^[18]