Supreme Court of Pakistan
عدالتِ عظمیٰ پاکستان
Emblem of the Supreme Court of Pakistan
Flag of the Supreme Court of Pakistan
33°43′41″N 73°05′55″E / 33.72806°N 73.09861°E / 33.72806; 73.09861
Established	14 August 1947; 76 years ago (1947-08-14)
Jurisdiction	Civil, criminal, constitutional and advisory
Location	Red Zone, Islamabad-44000, Pakistan
Coordinates	33°43′41″N 73°05′55″E / 33.72806°N 73.09861°E / 33.72806; 73.09861
Motto	فاحكم بين الناس بالحق "So judge between the people in truth" (Quran 38:26)
Composition method	Judicial Commission of Pakistan
Authorized by	Constitution of Pakistan
Appeals to	President of Pakistan for Clemency/Commutation of sentence
Appeals from	High Courts of Pakistan
Judge term length	Compulsory retirement at 65 years of age
Number of positions	17 (14; present strength)
Website	www.supremecourt.gov.pk
Chief Justice of Pakistan
Currently	Qazi Faez Isa
Since	17 September 2023

The Supreme Court of Pakistan (Urdu: عدالتِ عظمیٰ پاکستان; Adālat-e-Uzma Pākistān) is the apex court in the judicial hierarchy of the Islamic Republic of Pakistan.^[1]

Established in accordance with Part VII of the Constitution of Pakistan, it has ultimate and extensive appellate, original, and advisory jurisdictions on all courts (including the high courts, district, special and Shariat court), involving issues of laws and may act on the verdicts rendered on the cases in context in which it enjoys jurisdiction. In the court system of Pakistan, the Supreme Court is the final arbiter of legal and constitutional disputes as well as final interpreter of constitutional law, and the highest court of appeal in Pakistan.

In its modern composition, the Supreme Court is incorporated of Chief Justice of Pakistan, sixteen justices and two ad hoc who are confirmed to their appointment by the President upon their nominations from the Prime Minister's selection based on their merited qualifications. Once appointed, justices are expected to complete a designated term and then retire at 65 years old, unless their term is terminated through resignation or impeachment by the Supreme Judicial Council resulted in a presidential reference in regards to the misconduct of judge(s). In their discourse judgement, the justices are often categorized as having the conservative, textual, moderate, and liberal philosophies of law in their judicial interpretation of law and judgements.^{: 1915 [2]: 436 [3]}

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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In 1861, the British government in India enacted the Indian High Courts Act that created the high courts in all over the Indian subcontinent in various provinces while abolishing the supreme courts Calcutta, Bombay, Madras, Lahore, and also the Panchayati system in autonomous presidencies.^{: 234 [5]}

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 independence of Pakistan as an aftermath of British partition of India in 1947, the Federal Court was also partitioned between India and Pakistan as Justice Sir Harilal Kania became the first Chief Justice of India and Justice Sir Abdul Rashid becoming the first Chief Justice of Pakistan.^{: 294 [7]}

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 Constitution of Pakistan reconstituted the composition of Supreme Court and the high courts but it does not specify the number of justices to be served in the Supreme Court.^[11] Qualifications to be served as a supreme court justice are strictly imposed that are based on merit, personal intellectualism, and experiences as a judge in the high courts.^[12]

In 1947, the Supreme Court consisted of a Chief Justice and six senior judges from Sindh, Punjab, NWFP, Balochistan, and East Bengal.^{: 94–95 [13]} Over the several successive years, the work of the Court increased and cases began to accumulate, leading the Supreme Court requesting the Parliament to increase the number of judges.^[4] As the number of the justices has increased, they sit in smaller benches of two or three (referred to as a division bench^[14]), however, coming together in larger benches of five or more (referred to as a constitution bench) when required to settle fundamental questions of law.^{: 16–17 [8][15]}

Eligibility, nomination and confirmation

The nomination of justices in the Supreme Court comes from an executive selection made by the Prime Minister based on judges' merited qualifications, personal intellectualism, and experiences as judge in high courts.^[16] The President then confirms the nomination summary and eventually appoints the Chief Justice and judges in the Supreme Court.^[17]

The Constitution states that a nominee is not eligible unless they are:

• 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 print press and electronic media, as news media often comments on the executive's selection for the appointment.^{: 388–389 [21]} Appointments of Chief Justices Saeeduzzaman Siddiqui, S.A. Shah, Iftikhar Chaudhry, Faisal Arab, and T.H. Jillani Saqib Nisar and Asif Saeed Khosa have gain prominent attention from media in all over the country, mainly due to their ideological and philosophical leanings.^{: xxxx [22][23]}

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 Federal Sharia Court.^[25]

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 Judicial Commission determines the salary, other allowances, leave of absence, pension, etc. of the Supreme Court justices.^[27] A Supreme Court justice gets ₨. 558,907.00 ($5,333.85) with additional allowances of ₨. 259,009.00 ($2471.81).^[27] Other benefits include the free housing and medical treatment as well as tax-free electricity bills.^[27] A judge who has retired as a justice of the Supreme Court is debarred from practising in any court of law or before any other authority in Pakistan.^[28]

Judicial independence

The Supreme Court has the explicit de jure powers and enjoys the powerful judicial independence to block the exercise of certain Prime Minister's executive powers or Parliament's legislative powers that repugnant to Constitution.^[29] The Supreme Court has maintained its institutional integrity and has been able to maintain its authority to some degree in the face of martial law in Pakistan in last decades.^{: 144–145 [30]}

In another example of a de jure power granted to the Court, article 17 of the Constitution states:

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, Chief Justice S.A. Shah found Prime Minister Nawaz Sharif of contempt of court but the order itself was voided by the Supreme Judicial Council.^{: 45–46 [32]} In 2012, Chief Justice Iftikhar Chaudhry retroactively barred Prime Minister Yousaf Raza Gillani of holding the office after the latter was found of in charges of court of contempt and refusing to follow the court's orders.^[33]

In 2013, the Supreme Court took suo motu actions against populist Imran Khan of criticising against the judgement of the Supreme Court's senior judges in regards to the elections.^[34] The case was later dropped when Attorney-General assured the Supreme Court justices that Imran Khan did not insubordinate the judiciary.^[34]

Court demographics

In practice awarded by Constitution, judges of the supreme court have been selected so far, mostly from amongst judges of the high courts. The Constitution allows the judges to be appointed at the Supreme Court regardless of colour, race, and religious sect. Justices A.S.M. Akram, Fazal Akbar, Amin Ahmed, Abdus Sattar, Hameedur Rahman, and Hamoodur Rahman (Chief Justice) were the Bengali/Bihari jurists who served as senior justices in the Supreme Court. In 1960, Justice Alvin Robert Cornelius became the first Christian to be served as Chief Justice, while George Constantine also served in the Court.^{: 55 [35]}

In the 1970s–1980s, Justice Dorab Patel was the first Zorastrian, followed by Justice Rustom Sidwa who served as Supreme Court justice from 1989 until 1993.^{: 226–227 [36]} Justice Rana Bhagwandas was the first Hindu jurist who has distinction being the Chief Justice of Pakistan in 2007. Justice Qazi Faez Isa is of the Hazara descent who is currently serving as the Chief Justice of the Supreme Court.^[37]

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

Judicial and philosophical leanings

The jurists/judges do not represent or receive the official political endorsements from the nation's political parties which is an acceptable professional practice in the executive branch of the government.^{: 199–200 [39]} As their American counterparts in the U.S. Supreme Court, the Jurists philosophical leanings in the Supreme Court are often categorized as conservative, moderate, liberal, and textualist that reflected in their judicial interpretation of the judgements in the impending cases of importance.^{: xxx [40][41]: 67–68 [42]}

In 1947, Governor-General Muhammad Ali Jinnah confirmed the nomination of Justice Sir Abdul Rashid, at the behest of Prime Minister Liaquat Ali-Khan, was said to be a national conservative leanings in his judgement.^{: 60–65 [42]} His successor, Chief Justice Muh'd Munir, was a liberal in his jurisprudence but sided with conservative judgement when validated dissolution of the first Constituent Assembly in 1954 and the National Assembly in 1958 in the light of doctrine of necessity.^{: 67 [42]} Under the Chief Justice Muh'd Shahabuddin, the Supreme Court had the conservative leanings in regards to the constitutionalism and their judgements in the cases of important issues.^{: 67–68 [42]} Chief Justice Shahabuddin plays a crucial role in drafting the second set of the Constitution of Pakistan which incorporated the liberal ideas with the important Islamic provisions.^{: 68 [42]}

In 1960, President Ayub Khan appointed Justice Alvin Robert Cornelius who took much liberal approach in his jurisprudence when deciding cases on fundamental rights against the executive overreach.^{: 436 [3]} Justice Cornelius led Supreme Court's verdicts on many constitutional cases were carefully sided with the Islamic ideas but provided much broader role of liberal ideas to safeguard the fundamental rights of the ordinary citizens while being critical of the state emergency.^{: 437 [3]}

In 1968, the Supreme Court was greatly divided when Chief Justice Hamoodur Rahman presided the case hearings after President Yahya Khan declared martial law and suspended the writ of the constitution.^{: 59 [43]} In the views of Chief Justice Rahman, the martial law was invalid and notably ruled that Yahya Khan's assumption of power was "illegal usurpation".^[43] The Supreme Court also overruled and overturned its convictions that called for validation of martial law in 1958.^[43] Despite rulings, there was a split decision between the moderate justices, including Chief Justice Rahman, and conservative leaning justices of the Supreme Court who "condoned" the actions in the light of "doctrine of necessity".^{: 60–61 [43]} The de jure powers of the Supreme Court have increased since presiding the War Enquiry Commission in 1974, intervening in the events that Supreme Court justices viewed as violation of human rights by the executive authorities.

In 1977, the Supreme Court had again legalized the martial law in the light of "doctrine of necessity" and denied taking petitions to review its decision. During this time, Supreme Court justices were described as notoriously conservative and only a few moderates, appointed by Prime Minister Zulfikar Ali Bhutto as his role as President in 1971–73.^{: 1915 [2]} The Supreme Court, however, did take the petitions to review the case of Zulfikar Ali Bhutto, after his counsels filed an appeal against the verdict of Lahore High Court.^{: 365 [44]} The Constitution Bench formed under Chief Justice Sh. Anwarul Haq, had contained Justice Muhammad Akram, Justice Dorab Patel, Justice Mohammad Haleem, Justice Nasim Hasan Shah, Justice Ghulam safdar Shah, Justice Kareem Illahi, Justice Waheedudin Ahmad, and Justice Kaisar Khan.^{: 61 [45]} By 1979, the Supreme Court greatly divided with Justice Dorab Patel, Justice G.S. Shah, and Justice Moh'd Haleem, who had the moderate and liberal leanings in their jurisprudence strongly disagreed with Bhutto's sentence of Capital punishment.^{: 273–274 [46]} On the other hand, Chief Justice Haq, Justice N.H. Shah, Justice Waheedudin Ahmad, and Justice Kaisar Khan, were described as having conservative/texualist ideology in their rulings and found Bhutto suitable for capital punishment; hence, marking a split decision by 4:3.^[47]

In 1993, Prime Minister Benazir Bhutto controversially elevated the Supreme Court jurist, SA Shah, who had known for his liberal jurisprudence, as Chief Justice over two senior ranking jurists at the Supreme Court.^{: xxx [48]} However, Justice Shah's judicial leanings did not protected the Benazir' administration when it was dismissed by President Farooq Leghari over allegations on corruption.^{: xxx [48]} In 1997, judicial crises reached its peak when Supreme Judicial Council took up the case against Justice Shah's appointment who eventually resigned from his office and succeeded by conservative jurist Ajmal Mian, only to be replaced with conservative jurist Saeeduzzaman Siddiqui as the new Chief Justice.^{: 63–64 [49]}

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 Chief Executive, forcefully retired the conservative leaning jurists and elevated the judges who had known to have libertarian views in their jurisprudence at the Supreme Court, including Justice Irshad Hasan as Chief Justice.^{: 145 [52]} In 2002, The Supreme Court supervised the general elections successfully oversaw the transition of power from the office of Chief Executive to Prime minister.^{: 350 [53]} The legalization of Contempt of court act further strengthened the judicial independence of the Supreme Court in 2004 when Shaukat Aziz became prime minister.^{: 350–351 [53]}

In a lecture in November 2022, Justice Ayesha A. Malik observed an increasing tendency to bring political and social issues to court that would be more suited for resolution within parliament or by the executive. Noting that this is the point at which balancing of power, judicial restraint (refraining from undue interference in other branches of government) and legal clarity become relevant, Malik expressed the view that courts should not act solely on compassion but instead prioritize upholding the rule of law.^[54]

Court composition

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 Islamic jurisprudence since its establishment in 1980.^[59] The ad hoc appointments for this bench are drawn either from the Federal Shariat Court or from among the Clergy.^[60] Decisions made the Federal Shariat Court may be appealed to the Appellate Bench, as the Appellate Bench of Supreme Court is the final authority on Islamic interpretation of law in Pakistan.^[61]

Registry and officers

The registry of the Supreme Court is its appointed officers who is assisted by registrars, several additional and deputy registrars, gazetted officers, and other law clerks.^[67] The registry branches provides speedy justice of all nature of crimes and disputes to the people living in remote areas in the country, while keeping the civil registry of the people.^[67]

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 High Courts and the President and may make rules providing for the appointment by for their terms and conditions of employment that is granted by the Constitution.^[72]

Law clerks and supreme court advocates

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