Supreme Court of Pakistan: Wikis

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Pakistan

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

Contents

Constitutional Authority

Part VII, chapter 2 of the Constitution (articles 176 through 191) deals with the powers, composition, rules, and responsibilities of the Supreme Court. Here is a summary:

  • Article 176 - composition of the Court
  • Article 177 - appointment and qualifications of the Chief Justice
  • Article 178 - oath of office
  • Article 179 - retirement
  • Article 180 - vacancy, absence, or inability of Chief Justice
  • Article 181 - vacancy, absence, or inability of other judges
  • Article 182 - ad hoc judges
  • Article 183 - location of Court
  • Article 184 - jurisdiction in dispute between two or more Governments
  • Article 185 - jurisdiction to hear and determine appeals
  • Article 186 - if requested, advise the President on important matters of law
  • Article 186A- authority to transfer venue
  • Article 187 - orders and subpoenas
  • Article 188 - power to review its own judgements and orders
  • Article 189 - Supreme Court's decisions binding on all other Pakistani Courts.
  • Article 190 - all executive and judicial authorities in Pakistan are bound to aid the Supreme Court.

In addition to the above, the Constitution makes numerous references to the Supreme Court in other chapters and sections. An important function of the judiciary branch is to provide checks and balances to the power of the other branches of government. The Supreme Court under Pervaiz Musharaf took oath not on the constitution of Pakistan but on a Legal Framework Order made by the military.

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De Jure Power

The Supreme Court has the explicit, de jure power to block the exercise of certain Presidential reserve powers. For example, under Article 58, the President may dismiss the National Assembly (triggering new elections) but the dismissal is subject to Supreme Court approval. The Court also has the power to overturn presidential orders and parliamentary legislation by declaring such orders or laws to be unconstitutional.

Another example: article 17 of the Constitution states:

Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declare that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

The Supreme Court thus provides, in principle, an important safeguard against the abuse of laws that have the potential to have politically repressive consequences.

De facto power

The de jure powers of the court as outlined in the Constitution must be seen in the context of Pakistani political history during which the army has seized power, declared martial law and suspended the constitution. Despite the military interventions in the government, the court has maintained its institutional integrity and has been able in some degree to maintain its authority in the face of military rule.

The Court has the strong support of the people and the elite and is one of the more respected institutions in the nation. Even during military rule, when the Court might have been expected to be subject to a supra-constitutional dispensation, it has managed to use its institutional authority to maintain some influence over political events.

Court Composition

The Supreme Court of Pakistan is headed by a Chief Justice. According to the constitution of Pakistan, the court consist of one Chief Justice and 16 other judges. However as per financial bill passed in 2008, the strength of the bench was raised to 29. One July 31, 2009, the supreme court held that the strength of the court is defined in constitution and this cannot be altered by financial bill and reaffirmed the court consist of one Chief Justice and 16 other judges[1]

According to Article VII, Chapter 2, judges on the Supreme Court are appointed by the President after consultation with the Chief Justice. A Supreme Court Judge needs to be a citizen of Pakistan. He also either needs to have an accumulative experience of at least five years as a judge of a High Court or he must have an accumulative experience of fifteen years as an advocate of a High Court. The Chief Justice of Pakistan is appointed by the President. The Chief Justice needs to be the senior most judge on the bench, unless President can record written reasons for deviating. The judges on the bench retire on reaching 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.

Justices

The Supreme Court of Pakistan currently consists of following (According to seniority).

      Did not take Nov 3, 2007 PCO oath       Took Nov 3, 2007 PCO oath but not to the Supreme Court       Took Nov 3, 2007 PCO oath to the Supreme Court

Name Appointed Retirement Status on Nov 2, 2007 PCO oath, Restored/Reappointed
Hon. Chief Justice Iftikhar Muhammad Chaudhry
  • Supreme Court Judge February 4, 2000[2]
  • Chief Justice June 30, 2005[3]
December 11, 2013[3] Supreme Court Chief Justice refused PCO oath, restored on March 22, 2009
Hon. Justice Javed Iqbal April 28, 2000[2] July 31, 2011[3] Supreme Court Judge refused PCO oath, restored on March 17, 2009
Hon. Justice Sardar Muhammad Raza Khan January 10, 2002[2] September 2, 2010[3] Supreme Court Judge refused PCO oath, reappointed/retook oath on September 19, 2008
Hon. Justice Khalil-ur-Rehman Ramday January 10, 2002[2] January 11, 2010[3] Supreme Court Judge refused PCO oath, restored on March 17, 2009
Hon. Justice Mian Shakirullah Jan July 29, 2004[2] August 17, 2012[3] Supreme Court Judge refused PCO oath, reappointed/retook oath on September 5, 2008
Hon. Justice Ghulam Hussain Jillani July 31, 2004[2] July 5, 2014[3] Supreme Court Judge refused PCO oath, reappointed/retook oath on September 5, 2008
Hon. Justice Nasir-ul-Mulk April 5, 2005[3] August 15, 2015[3] Supreme Court Judge refused PCO oath, reappointed/retook oath on September 19, 2008
Hon. Justice Raja Muhammad Fayyaz Ahmad September 14, 2005[3] May 31, 2011[3] Supreme Court Judge refused PCO oath, restored on March 17, 2009
Hon. Justice Chaudhry Ijaz Ahmed September 14, 2005[3] May 4, 2010[3] Supreme Court Judge refused PCO oath, restored on March 17, 2009
Justice Ghulam Rabbani April 12, 2009[4 ] Adhoc Justice Supreme Court Refused PCO oath on November 3, 2007. Retired as Adhoc Justice of Supreme Court while being deposed. He was a justice of Sindh High Court before being made Adhoc Justice of SC
Justice Sayed Zahid Hussain April 12, 2009[4 ] Lahore High Court Judge took PCO oath on November 3, 2007
Justice Muhammad Sair Ali April 12, 2009[4 ] Additional Judge Lahore High Court refused PCO oath on November 3, 2007, and retired as Judge Lahore High court while being deposed
Justice M.A. Shahid Siddiqui April 12, 2009[4 ] Additional Judge Lahore High Court refused PCO oath on November 3, 2007, and retired as Judge Lahore High court while being deposed
Justice Jawwad S Khawaja June 4, 2009[5] Retired Justice Lahore High Court Resigned from LHC on March 19, 2007 as protest against mistreatment of Chief Justice Iftikhar by Pakistan Police[4 ]
Justice Anwar Zaheer Jamali August 1, 2009[6] December 30, 2016 Judge Sindh High Court Refused PCO oath on November 3, 2007 as sitting judge of Sindh High Court. Reappointed as judge on SHC on August 27, 2008. Elevated to Supreme Court
Justice Khilji Arif Hussain September 7, 2009
Justice Rehmat Hussain Jaffery September 7, 2009
Justice Tariq Parvez Khan October , 2009

Provisional Constitutional Order and Supreme Court

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.

see Pakistani coup d'état 1999

PCO 2007 (General Prevez Musharaf Second Martial Law)

See State of Emergency in Pakistan 2007

A Few Major Cases

The Supreme Court under Musharraf

Furthermore, shortly after General Pervez Musharraf overthrew Nawaz Sharif by a military coup, the opposition challenged the legitimacy of the coup, asking the court to rule on its legality [7]. On May 12, 2000 the Court rendered a nuanced verdict [8] and -

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

Although the government, before this judgement, had not given a timetable for the restoration of democracy - having argued that it needed an indefinite and possibly prolonged time to reform the country - Musharraf publicly submitted to the Courts judgement [9]. The elections were duly held in October 2002 as ordered and the Constitution was revived. However, Musharraf later decided to retain power; he enacted the Seventeenth Amendment in December 2003, which largely incorporated to the Constitution the 2002 Legal Framework Order.

Pakistani legal theorists have posited that Pakistan's "grundnorm", the basis for its Constitutional convention and system of laws, continues in effect (and the Supreme Court therefore retains its authority) even when the written constitution is suspended by the imposition of a military dictablanda.

Reference against Chief Justice

On 9 March 2007, a presidential reference was served to the Chief Justice, Iftikhar Muhammad Chaudhry, attempting effectively to suspend him. The government ordered him to go on compulsory leave. On 20 July 2007, the Supreme Court unanimously overturned the compulsory leave order, and by a ten-out-of-thirteen majority, also ordered Chaudhry reinstated as Chief Justice.

The court ruled that the PO 27 of 1970 is unconstitutional. This order takes away the power of the executive to suspend Judges.Text of Supreme Court Order

State of Emergency

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

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

  • Hon. Chief Justice Mr. Justice Iftikhar Mohammad Chaudhry (Restored on March 17, 2009)
  • Hon. Mr. Justice Rana Bhagwandas (Retired after deposed. Retired on December 20, 2007)
  • Hon. Mr. Justice Javaid Iqbal (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 Khan (Retook oath/reappointed on September 19, 2008 during democratic period)
  • Hon. Mr. Justice Khalil-ur-Rehman Ramday (Restored on March 17, 2009)
  • Hon. Mr. Justice Muhammad Nawaz Abbasi (Took oath under PCO on November 3, 2007)
  • Hon. Mr. Justice Faqir Muhammad Khokhar (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 Jan (Retook oath/reappointed on September 5, 2008 during democratic period)
  • Hon. Mr. Justice M. Javed Buttar (Took oath under PCO on November 3, 2007)
  • Hon. Mr. Justice Tassaduq Hussain Jillani (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-Mulk (Retook oath/reappointed on September 19, 2008 during democratic period)
  • Hon. Mr. Justice Raja Fayyaz Ahmed (Restored on March 17, 2009)
  • Hon. Mr. Justice Chaudhry Ijaz Ahmed (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 Times, the Judges of the Supreme Court of Pakistan who had pleged allegiance to General Pervez Musharaff have been caught in sexual acts with prostitutes. The article alleges that the photographs of the judges in sexual acts were used to blackmail the judges to take the oath of allegiance and make rulings that the military wants.[10]

Supreme Court composition under Musharraf after November 3, 2007

The Supreme Court of Pakistan consisted of the following who took under the Provisional Constitutional Order (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, nullified the imposition of emergency, suspension of constitution, and Provisional Constitutional Order, instructing all the honourable judges not to take oath under the PCO, and all military personnel not to obey any illegal orders.[11]

On 15 February 2008, the Supreme Court delivered a detailed judgement to validate the Proclamation of Emergency on 3 November 2007, the Provisional Constitution Order No 1 of 2007 and the Oath of Office (Judges) Order, 2007. This Full Court judgement is written by Chief Justice Abdul Hameed Dogar. Other members of the Full Court were Justice Ijaz-ul-Hassan, Justice Mohammad Qaim Jan Khan, Justice Mohammad Moosa K. Leghari, Justice Chaudhry Ejaz Yousaf, Justice Muhammad Akhtar Shabbir and Justice Zia Perwez. The judgement wrote, "'The learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction"[12]

Recent events

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.[13]

Name Status
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Took Oath on PCO as Chief Justice Balochistan High Court on January 26, 2000
Mr. Justice Javed Iqbal Took Oath on PCO as Judge of Balochistan High Court on January 26, 2000
Mr. Justice Sardar Muhammad Raza Khan Took Oath on PCO as Judge of Peshawar High Court on January 26, 2000
Mr. Justice Khalil-ur-Rehman Ramday Took Oath on PCO as Judge of Lahore High Court on January 26, 2000
Mr. Justice Mian Shakirullah Jan Took Oath on PCO as Judge of Peshawar High Court on January 26, 2000
Mr. Justice Tassaduq Hussain Jillani Took Oath on PCO as Judge of Lahore High Court on January 26, 2000
Mr. Justice Nasir-ul-Mulk Took Oath on PCO as Judge of Peshawar High Court on January 26, 2000
Mr. Justice Raja Fayyaz Ahmed Took Oath on PCO as Judge of Balochistan High Court on January 26, 2000
Mr. Justice Ch. Ijaz Ahmed Took Oath on PCO as Judge of Lahore High Court on January 26, 2000
Mr. Justice Ghulam Rabbani Took Oath on PCO as Judge of Sindh High Court on January 26, 2000
Mr. Justice Sarmad Jalal Osmany Took Oath on PCO as Judge of Sindh High Court on January 26, 2000
Mr. Justice Muhammad Sair Ali 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 January 10, 2002[2] 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[3]
Justice M. Javed Buttar July 29, 2004[2] 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[3]

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 [1], 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[14] took oath on PCO on November 6, 2007. Was a retired Chief Justice of the Federal Shariat Court[14]. 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[15] 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[16] Retired Lahore High Court Judge[3] took oath after reinstatement of constitution. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court.
Hon. Sarmad Jalal Osmany September 19, 2008 Sindh High Court Judge refused PCO oath, appointed to Supreme Court on September 19, 2008. As result of judgment in case "CONSTITUTION PETITION NO. 08 OF 2009", removed from bench of Supreme Court and reverted as a judge of SHC. Appointed as Chief Justice of Sindh High Court on August 1, 2009
Justice Sardar Muhammad Aslam March 7, 2009[17] 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 Musharraf.
  • Those who were elevated to higher courts after restoration of constitution, and were appointed by Asif Ali Zardari.

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:

  1. Newly appointed justices who never took any sort of oath on any PCO have been removed.
  2. Sitting justices who took oath on PCO 2007 are still acting as justices, though their cases are to be sent to Supreme Judicial Council.
  3. Sitting justices who accepted reappointed and took oath from Justice Dogar as still acting as justices of court with no action.
  4. 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:-

  1. Mr. Justice Pervez Ali Chawla
  2. Mr. Justice Habib Ullah Shakir
  3. Mr. Justice Nazir Ahmed Ghazi
  4. Mr. Justice Abdul Sattar Goraya
  5. Mr. Justice Syed Ihtasham Qadir Shah
  6. Justice Ms. Jamila Jahanoor Aslam
  7. Mr. Justice Mahmood Akhtar Khan
  8. Mr. Justice Jamshed Rahmat Ullah
  9. Mr. Justice Pervez Inayat Malik
  10. Mr. Justice Arshad Mahmood
  11. Mr. Justice Irfan Qadir
  12. Mr. Justice Syed Zulfiqar Ali Bukhari
  13. Mr. Justice Ch. Naeem Masood
  14. Mr. Justice Anwar-ul-Haq Pannu
  15. Mr. Justice Muhammad Shafqat Khan Abbasi
  16. Mr. Justice Imtiaz Rasheed Siddiqui
  17. Mr. Justice Bin Yamin
  18. Mr. Justice Khalid Ali Z. Qazi
  19. Mr. Justice Salman Ansari
  20. Mr. Justice Abdul Rehman Farooq Pirzada
  21. Mr. Justice Abdul Rasheed Klwar
  22. Mr. Justice Zafar Ahmed Khan Sherwani
  23. Mr. Justice Syed Mehmood Alam Rizvi
  24. Justice Ms. Soofia Latif
  25. Mr. Justice Maqbool Ahmed Awan
  26. Mr. Justice Safdar Ahi Bhutto
  27. Mr. Justice Moharram G. Baloch
  28. Mr. Justice Malik Muhammad Aqil
  29. Mr. Justice Syed Shafaqat Ali Shah Masoomi
  30. Mr. Justice Muhammad Iqbal Mahar
  31. Mr. Justice Khadim Hussain M. Sheikh
  32. Mr. Justice Muhammad Ismail Bhutto
  33. Mr. Justice Arshad Siraj Memon
  34. Mr. Justice Aamir Raza Naqvi
  35. Mr. Justice Muhammad Karim Khan Agha
  36. Mr. Justice Salman Talibuddin
  37. Mr. Justice Shaji Rehman Khan
  38. Mr. Justice Ghulam Mohayuddin Malik
  39. Mr. Justice Ziauddin Khattak
  40. Mr. Justice Syed Mussaddiq Hussain Gilani
  41. Mr. Justice Syed Yahya Zahid Gilani
  42. Mr. Justice Muhammad Alam Khan
  43. Mr. Justice Mazhar Hussain Minhas
  44. Mr. Justice Muhammad Ashraf Bhatti
  45. Mr. Justice Rana Zahid Mehmood
  46. Mr. Justice Kazim Ali Malik
  47. Mr. Justice Hafiz Tariq Nasim
  48. Mr. Justice Khalil Ahmad
  49. Mr. Justice MA Zafar
  50. Mr. Justice Malik Saeed Ejaz
  51. Mr. Justice Syed Shaheen Masud Rizvi
  52. Mr. Justice Ali Akbar Qureshi
  53. 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 in [18] 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 July 31 judgement.

See also

References

  1. ^ a b Supreme Court Decision CONSTITUTION PETITION NO. 09 and 08 OF 2009
  2. ^ a b c d e f g h Supreme Court Annual Report 2004
  3. ^ a b c d e f g h i j k l m n o p Supreme Court Report Golden Jubilee Edition 2006
  4. ^ a b c d e The Pakistani NewsPaper (April 12, 2009). "Justice Khawaja Sharif appointed LHC CJ". The Pakistani NewsPaper <http://thepakistaninewspaper.com>. http://thepakistaninewspaper.com/news_detail.php?id=13449. Retrieved 2009-04-13.  
  5. ^ The News International (June 4, 2009). "President appoints Justice (retd) Jawwad as SC judge". The News International. http://thepakistaninewspaper.com/news_detail.php?id=13449. Retrieved 2009-06-04.  
  6. ^ .  
  7. ^ Military takeover challenged in court, BBC, November 22, 1999
  8. ^ Pakistan court limits army rule, BBC
  9. ^ "SOUTH ASIA | Musharraf pledges return to democracy". BBC News. 2000-05-25. http://news.bbc.co.uk/1/hi/world/south_asia/763880.stm. Retrieved 2009-11-09.  
  10. ^ Sex Scandal involving Supreme Court Judges. Ghulam Hasnain, reporting from Islamabad for The Times, November 11, 2007. Retrieved November 21, 2007.
  11. ^ golden-historic-decision-by-supreme-court-of-pakistan/ Order of the Supreme Court of Pakistan November 3, 2007.
  12. ^ "Business Recorder [Pakistan's First Financial Daily]". Brecorder.com. http://www.brecorder.com/index.php?id=694527&currPageNo=1&query=&search=&term=&supDate=. Retrieved 2009-11-09.  
  13. ^ "1999 Pakistani coup d'état - Wikipedia, the free encyclopedia". En.wikipedia.org. http://en.wikipedia.org/wiki/1999_Pakistani_coup_d%27%C3%A9tat. Retrieved 2009-11-09.  
  14. ^ a b "Encore, NOS, The News International". Jang.com.pk. http://jang.com.pk/thenews/feb2008-weekly/nos-10-02-2008/enc.htm. Retrieved 2009-11-09.  
  15. ^ "Justice Sheikh Hakim ali | Justice supreme court of Pakistan @ Pakistan Herald". Pakistanherald.com. http://pakistanherald.com/profile.asp?hofid=228. Retrieved 2009-11-09.  
  16. ^ "International : Pak Supreme Court gets two more judges : 75540". Indopia.in. http://www.indopia.in/India-usa-uk-news/latest-news/75540/International/2/20/2. Retrieved 2009-11-09.  
  17. ^ "Supreme Court judge, Chief Justice IHC Take Oath". Apakistannews.com. 2009-03-09. http://www.apakistannews.com/supreme-court-judge-chief-justice-ihc-take-oath-108974. Retrieved 2009-11-09.  
  18. ^ "Leading News Resource of Pakistan". Daily Times. http://www.dailytimes.com.pk/default.asp?page=2009\08\29\story_29-8-2009_pg13_12. Retrieved 2009-11-09.  

External links

Coordinates: 33°43′41″N 73°05′55″E / 33.72806°N 73.09861°E / 33.72806; 73.09861


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