Supreme Court of Pakistan

The Supreme Court is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The Court's permanent seat is Islamabad, where it usually meets. The Court has a number of de jure powers which are outlined in the Constitution of Pakistan as well as de facto powers which many have considered remarkable given the nation's history of military rule during which part or all of the constitution has been suspended.

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Constitutional Authority

Part VII, chapter 2 of the Constitution (articles 176 thru 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 qualifictions 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.

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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 reasonab1e 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.

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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.

For example, shortly after the government of General Pervez Musharraf came to power by a coup, the opposition challenged the legitimacy of the coup, asking the court to rule on its legality . On May 12, 2000 the Court rendered a nuanced verdict , which -

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'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 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.