Supreme Court of Pakistan

The Supreme Court of Pakistan (

Established in accordance with Part VII of the

The Supreme Court has a permanent seat in Islamabad and meets at the Supreme Court Building at the Red Zone.^[4]

History

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Until the enactment of the Government of India Act 1935 in 1935 that created the Federal Court, these new high courts had the distinctionary powers of being the highest Courts for all cases.^{: 235–236 [5]} The Federal Court had wide range of jurisdictions to resolve disputes between the provinces, presidencies, and the Government of India Act 1935, often hearing appeals against judgements of the High Courts.^{: 44–50 [6]}

After the

While the tradition of British law culture continues to remain an integral part of the judiciary, the modern existence of the Supreme Court of Pakistan came when the first set of the Constitution of Pakistan was promulgated on 23 March 1956.^{: 10–11 [8]: 24–26 [9]} The ratification of the Constitution of Pakistan reestablished the Supreme Court in 1956, replacing the name "Federal Court" to "Supreme Court", initially had its seat in Karachi where the Sindh High Court exists now.^[4] In successive years, the Supreme Court was moved to Lahore High Court until the Supreme Court was permanently moved into its new building constructed in Islamabad in 1964.^[4]

Constitutional composition

Constitution of the court

Although the Supreme Court was established pursuant to the Government of India Act 1935, the modern structure of the court was reestablished by the second set in 1956, and restructured by the Constitution of Pakistan in 1973 where a significant part of the Constitution is dedicated towards the restructuring of the Supreme Court.^[8]

The Part VII of the Constitution, ranges from articles 176 through 191, deals with the powers, composition, rules, and responsibilities of the Supreme Court.^[10]

These articles concern:

• 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 the Chief Justice
• Article 181 – Vacancy, absence, or inability of other justices
• Article 182 – Ad hoc appointments of justices
• Article 183 – Location of Court
• Article 184 – Jurisdiction in a 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 – Binding nature of Supreme Court's decisions on all other Pakistani Courts
• Article 190 – All executive and judicial authorities in Pakistan bound to aid the Supreme Court

Size of Court

The Part VII of the

• A
  citizen of Pakistan^[18]
  who:
  • has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or[19]
  • has for a period of, or for periods aggregating not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).^[20]

Since the 1990s, the nomination and confirmation process has attracted considerable attention from the

Furthermore, the major and influential recommendations for judges to be elevated at the Supreme Court as justices comes from the Judicial Commission that is chaired by the Chief Justice of Pakistan who prepares the qualification summary before the nomination sent to executive.^[24]

Ad–hoc appointments and removal

There has been Ad hoc appointment in the Supreme Court made when the quorum of Judges is not possible to complete the sitting number of justices in the court, or if it is necessary to increase the number of justices in the Supreme Court.^[20] The nomination comes directly from the Judicial Commission chaired by the Chief Justice who prepares the nomination summary as President confirms their appointments.^[20]

As of current, there are two justices are on the ad hoc appointment that are from the

A judge of the Supreme Court can be removed under the Constitution only on grounds of proven misconduct or incapacity and by an order of the President of Pakistan.^[26] A written reference has to be sent to the Supreme Judicial Council that will conduct the hearings of allegations of misconduct that would determine the removal of judge.^[26]

Tenureship, salaries and post-retirement

The

Every citizen, not being in the service of (State 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 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.

— Article 17:Freedom of association; Chapter I: Fundamental Rights and Principles, Constitution of Pakistan, Chapter source^[31]

The Supreme Court thus provides, in principle, an important safeguard against the abuse of laws that could potentially have politically repressive consequences or in clear violation of human rights.^[29]

The Constitution also allows the Supreme Court to exercise powers and take sua sponte actions against the person, regardless of its statue, or the authority, of being disobedient to or disrespectful towards the Supreme Court, its justices, and its officers in the form of behavior that opposes or defies the Supreme Court's institutional integrity and popular authority.^[26]

In 1997,

In January 2022, Ayesha Malik was sworn in as the first female Supreme Court judge.[38]

Judicial and philosophical leanings

On 12 October 1999, the Supreme Court partially validated the martial law in the light of "doctrine of necessity" on the technicality but Chief Justice Saeeduzzaman Siddiqui decided to hear the petitions over the legality of the martial law.^{: 25 [50]} Although, the Supreme Court had only validated the martial law for three-years only, the Supreme Court's jurists and Justice Saeeduzzaman Siddiqui in clear view of this coup as a "violation of constitution" as Sharif's lawyers made a ground base for finding Musharraf of treason.^[51]

General Musharraf, acting as

The justices and jurists of the supreme court are set to retire at the age of 65, unless the jurists sooner resign or are removed from office, or records written reasons for deviating from this rule in accordance with the Constitution.^[1] By an act of parliament of 1997, there is a fixed number of justices at 17 and, as of current, there are currently sixteen judges and one vacancy that is yet to fill.^{: 14 [55][56]} There are two ad hoc appointment of the jurists from the Federal Shariat Court to assist with religiosity concerned cases.^[57]

Chief Justice of Pakistan and justices

As of current formation, Qazi Faez Isa is tenuring as the Chief Justice of Pakistan, having been appointed on 17 September 2023. The Supreme Court is currently composed of the following justices (in order of seniority), that included the sixteen regular judges including the Chief Justice and two ad hoc judges who were reappointed again after their retirement.^[58]

The ad hoc appointments are due to fill the Shariat Appellate Bench that is composed on legal scholars that has expertised on

Registry and officers

The registry of the Supreme Court is its appointed

There are five registry of the supreme court: Islamabad,[67] Karachi,^[68] Lahore,^[69] Peshawar,^[70] and Quetta.^[71]

The Officers and Registrars are appointed by the supreme court with the approval from the chief justices of

The Supreme Court has an extensive competitive program for the appointment of the law clerks and research associates at the Supreme Court Library.^[73] The Supreme Court hires the law clerks based on the recommendations provided by their professors from their respected universities and colleges.^[74] Law clerks reviews the petitions for writ of certiorari, research them, prepare bench memorandums, and draft opinions, and reported back to the supreme court's administrative registrar.^[74] As of current, the supreme court has 10 law clerks for the 2016–17 year.^[75]

The Pakistan Bar Council provides qualification for senior advocates, barristers, lawyers, and selected civil court judges to be elevated as Advocate Supreme Court (ASC) based on individual experience, qualifications, and selected invitations.^[76]

Court campus and facilities

The Supreme Court Building is located at the Constitution Avenue in Islamabad, flanked by the Prime Minister's Office to the south, the Presidential Palace and the Parliament Building to the north.^[77]

Initially, the Supreme Court met in Karachi and later moved to Lahore/Rawalpindi on various location until 1960 after the government moved to Islamabad.^[77] The Supreme Court building is within the ambit of the Islamabad Police, maintaining the law and order as well as campus security of the court.^[78]

The Supreme Court Building is designed by the renowned Japanese architect,

The Court Complex is comprised on Main Central Block, Judges Chamber's block, and Administrative Block, covering 339,861sq. ft².^[77] Administration of the Court is supervised by the Chief Justice who exercise the powers through the Registrars, Law clerks, Librarians, and private secretaries to run the judicial functions in proper manner.^[79]

The Court complex judges' chambers, a separate building consisting of the

The Supreme Court Museum serves as an invaluable repository for preserving the Judicial History of Post and pre-Independence era for future generation.^: 1–2[80] The Museum's collections include fine arts, oral histories, photographs, personal belongings of judges and chief justices and an archival collection of rare documents.^: 2 [80] These collections are displayed in the permanent exhibit gallery of the Museum, as well as in temporary exhibits; surely in future these archival materials will be assets to the researchers.^: 3 [80] The idea of Supreme Court Museum was dreamt in year 2010 by Chief Justice Tassaduq Hussain Jillani and completed in the June 2016.^{: 5–6 [80]}

Jurisdiction

The Supreme Court has all the

The Supreme Court also enjoys the plenary jurisdiction and may exercise its plenary powers for passing appropriate orders to ensure the completion of its orders and to complete the justice at all levels of commands.^{[87]: 231 [88][self-published source?]}

Rules and process

Rulings and transfer of cases

The Supreme Court is empowered to frame its own rules for the purpose of regulating the practice and procedure of the Court.^[89] When the cases are determined as their final rulings, the jurists deliver their rulings in an open court, either at once or by announcing a future date to the concerned parties through their advocates upon writing their opinions during their recesses.^{: 22–23 [90]}

All cases that come before the supreme court through the

When the certiorari petitions are granted by the Supreme Court, the case is then set for the oral arguments, issuing orders to advocates of concerning parties in the case of importance.^: 6 [91] If the parties, despite the opportunity granted by the court to make oral submissions, do not avail the same, the court is not bound to wait indefinitely for them and keep on adjourning the matter.^{: 6–7 [91]} During the time of the orality by either sides of the parties, the justices may interrupt the advocate and ask questions.^: 7 [91] The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded.^: 7 [91]

At the conclusion of oral argument, the case is submitted for the final judgements where cases are decided by majority vote of the justices.^{: 10–25 [92]} It is possible that, through recusals or vacancies, the Court divides evenly on a case, as such happened on the case Nusrat Bhutto v. Federation of Pakistan (1977–78).^[43]

Review Petition and actions

Despite its final rulings, the Supreme Court may review any case upon the filing of review petition of any party to any civil and criminal case of any decisions, judgements/rulings have been pronounced by the Supreme Court.^[89] The party that filed an appealed through the supreme court advocates to the Supreme Court is the Appellant and the non-mover is the respondent, where all case names before the Supreme Court are styled "petitioner/appellant vs. defendants/respondent".^{: 104–105 [90]}

All decisions that are pronounced by the supreme court, after hearing the review petitions, are considered as final rulings that are to be binding on all other courts in Pakistan.^[89] The constitution also empowers the Supreme Court to call upon any authority, either an executive or judicial, to act in aid of the Supreme Court to ensure its rulings are delivered to complete justice.^[89]

Published opinions and citations

The

About a year after the paperbacks are published, a final and more cited volume of decision of supreme court volume of Annual Report is published and numbered whereas the researchers may cite the works in their reports.[97]

Supreme Court Bar Association

Supreme_court_Bar.png

All supreme court advocates are required to be members of the Supreme Court Bar Association in order to plead the cases before the court.^{: 1–2 [98]} Formed and established in 1989, the Bar comprises the supreme court lawyers who are elected from all over the country and is aimed to uphold the rule of law, cause of justice and protect the interest of the legal profession as well as that of public.^[99]

The Bar is governed by an executive council consisting of 22 elected members with an elected president and a secretary.^[100] Advocates can be admitted as either individuals or groups and their admission is approved by the elected president of the Bar.^{: 2–3 [98]} Members of the Supreme Court Bar Association are also granted access to the Supreme Court Library's research collection and law periodicals.^{: 3–4 [98]}

Institutional de jure powers

The Supreme Court has played an influential and pivotal role in the

1. Federation of Pakistan et al. v. Maulvi Tamizuddin Khan
2. Usif Patel v. Two others v. The Crown
3. Special Reference made by the Governor-General of Pakistan

First, the Supreme Court validated the Governor-General's actions in case 1 but soon considered such powers as Ultra vires in case 2 and case 3. However, the Court found it legal in its jurisdiction in thrice cases when it validated the actions under the impression of "doctrine of necessity".^{: 236 [101]} Despite its rulings, the Court maintained its institutional authority over the Governor-General's actions and ultimately supervised the election of the Constituent Assembly which was transformed into National Assembly of Parliament that promulgated the first set of Constitution of Pakistan.^{: 119–121 [102]}

In 1969, Supreme Court justices again heard the petitions against the suspension of the

The Constitution empowers the Supreme Court to exercise its powers of contempt of court to punish any person or an authority found of scandalizing, abusing, interfering, and obstructing the procedures of the court or its rulings.^[26] In 2001–2002, there were additional amendments made that further empowers the Supreme Court and its institutional powers to struck any federal authority found on the charges of contempt of court.^[111]

In a much publicized case, the Supreme Court effectively used its constitutional powers when it ceased

In 2007, it was reported widely by the

The restoration of the justices that resulted from the immense public pressure led to the judiciary to begin a quest for independence with an aim to ensure a strong and efficient judicial system that could quickly deliver justice to the public.[115] The Supreme Court took notice of several important constitutional and other cases in the period that related to the public interest. These cases of importance included the constitutional petitions and judgements on:

• • Constitution Petition No. 8 & 9 of 2009
  • Dr. Mubashir Hussain vs. Federation of Pakistan
  • Missing Person vs. the Federation of Pakistan et al.
  • Petitioners vs. Federation of Pakistan et al.
  • Steel Workers Union vs. Federation of Pakistan et al.
  • Applicants vs. NICL et al.

The Supreme Court rendered its judgement declare the appointments based upon PCO on 3 November 2007 as null and void as well as declaring the

In addition to the above justices, the following justices were removed from the Supreme Court of Pakistan[118] on the ground that their appointment to the court was made without consultation with the de jure Chief Justice of Pakistan.

Controversial aspect of the decision

The decision of the Court summarily removed all justices of the higher judiciary who were not part of it as of 2 November 2007. Their removal was ordered on the grounds that the de jure Chief Justice was not allowed to advise in these cases. In the same decision the court held that the de jure Chief Justice from 3 November 2007 to 22 March 2009 was Justice Chaudhry.^[115]

There were three groups of removed justices:

• Those elevated to higher courts who initially took oath under the PCO
• Those who were elevated to higher courts after restoration of the Constitution and were appointed by Musharraf
• Those who were elevated to higher courts after restoration of the Constitution and were appointed by Asif Ali Zardari

The Supreme Court bench that rendered the decision consisted entirely of justices who had taken oath under the PCO of 1999 themselves, but were already sitting justices of the higher judiciary at the time and had taken a constitutional oath. The 1999 PCO and decisions made under it were given constitutional protection by Seventeenth amendment.^[115]

This decision has resulted in situations where:

1. newly appointed justices who never took any sort of oath under any PCO have been removed
2. sitting justices who took an oath under the 2007 PCO are still acting as justices, though their cases will be sent to Supreme Judicial Council
3. sitting justices who were reappointed and took oath under Justice Dogar are still acting as justices with no action
4. justices who took oath under the PCO of 1999 are still functioning as justices of higher judiciary

Critics of the decision question the fact that some PCO judges are still working and some non-PCO judges have been sacked.

Review petition filed by Lahore High Court non-PCO removed judges

Removed ad hoc judges of the Lahore High Court have filed several petitions in the Supreme Court in Lahore for review of its judgment, which sent 76 judges of Supreme Courts and High Courts immediately home.

These judges argue 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 following the consultation required under the Constitution. They accepted the offer and took oath when the state of emergency was lifted. They never took oath under a PCO and continued performing the functions of judges of the High Court until judgement was rendered against them.

These judges were appointed by Lahore High Court Chief Justice Justice Zahid Hussain, who is still a justice of the Supreme Court of Pakistan and is not being tried before the Supreme Judicial Counsel.

The petition also noted that none of the sacked judges were made parties to the decision against them, nor were they able to comment in the hearing or in some cases aware that the hearing was taking place. They also allege that no copy of the decision was sent to the High Court or to the judges concerned.

Key controversial points

According one news article,^[122] the Supreme Court applied its judgement retroactively, having effect from 3 November 2007. The 14-member Supreme Court bench did not, however, apply the sanction to judges who took oath under the 1999 PCO. Some of these are current^[when?] justices, and some have not yet^[when?] taken a constitutional oath.

Critics of the decision also argue that it is inconsistent with the principles laid down in Malik Asad Ali's case where it was held that the Chief Justice was bound by the Court's judgement. Chief Justice Sajjad Ali Shah was removed from office based on this case.

Inconsistently with the decision, the present Chief Justice Chaudhry accepted the stance of the government that Justice Dogar was the Chief Justice until his retirement.

Following the decision, the official website of the Supreme Court was hacked by an unknown person. The hacked website made derogatory remarks about Chief Justice Chaudhry.

See also

References

External links

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