Pakistan Background Paper Eason-Weinmann Center for Comparative Law February 2012



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Pakistan

Background Paper

Eason-Weinmann Center for Comparative Law

February 2012


Nicole A. Morris

Research Assistant



The Supreme Court of Pakistan
The Supreme Court, as the apex Court of the land, exercises original, appellate and advisory jurisdiction. It is the Court of ultimate appeal and therefore final arbiter of law and the Constitution.1 The Court derives its power from the Constitution of Pakistan and is currently headed by Chief Justice Iftikhar Chaudhry. Its decisions are binding on all other courts. Pakistan’s constitution was amended in 2006 to include increased protection against exploitation of and violence against women,2 and as recently as this month, a draft for a new constitution has been approved.3 An Act of Parliament has determined the number of judges. The number fixed at the moment is 17. Two additional ad hoc Judges have also been appointed for one year. A person with five years experience as a Judge of a High Court or 15 years standing as an advocate of a High Court is eligible to be appointed as Judge of the Supreme Court. The Court exercises original jurisdiction in inter-governmental disputes, be that disputes between the Federal Government and a provincial government or among provincial governments. The Court also exercises original jurisdiction (concurrently with High Courts) for the enforcement of fundamental rights wherever a question of ‘public importance’ is involved. The Court has appellate jurisdiction in civil and criminal matters and advisory jurisdiction in giving opinions to the Government on questions of law.4

The Chief Justice is chosen exclusively by the President; all other Justices are chosen by the President after consultation with the Chief Justice.5 The Judicial system includes a network of Shariat Courts authorized to strike down any law that is deemed inconsistent with Islam. The authority of Shariat Courts includes the power to enforce the Hudood laws enacted in 1979.6 Judgments of the Supreme Court are final and enforceable. The tradition of a jury trial does not exist in Pakistan.



Court System

ORGANIZATION AND STRENGTH OF JUDICIAL HIERARCHY


SUPREME COURT OF PAKISTAN



CJ+16

(Also currently 2 Ad-hoc Judges)

Shariat Appellate Bench of the Supreme Court

5(3SC+2FSC / Ullema)





Federal Shariat Court

CJ+7(3 to be Ulema)




Forums entertaining Criminal Cases under Hudood Laws




Lahore High Court

CJ+49


High Court of Sindh

CJ+27


High Court of Balochistan

CJ+8


Peshawar High Court

CJ+15





Administrative Courts & Tribunals











Senior Civil Judge

Civil Judge 1st Class

Civil Judge 2nd Class

Civil Judge 3rd Class



Judicial Magistrate 1st Class

Judicial Magistrate 2nd Class

Judicial Magistrate 3rd Class

Senior Civil Judge

Civil Judge 1st Class

Civil Judge 2nd Class

Civil Judge 3rd Class




Judicial Magistrate 1st Class

Judicial Magistrate 2nd Class

Judicial Magistrate 3rd Class


Senior Civil Judge

Civil Judge 1st Class

Civil Judge 2nd Class

Civil Judge 3rd Class




Judicial Magistrate 1st Class

Judicial Magistrate 2nd Class

Judicial Magistrate 3rd Class


Senior Civil Judge

Civil Judge 1st Class

Civil Judge 2nd Class

Civil Judge 3rd Class




Judicial Magistrate 1st Class

Judicial Magistrate 2nd Class

Judicial Magistrate 3rd Class




[545]

[170]

Member Majlis-e-Shura

[18]



Qazi

[30]

The Reputation of the Supreme Court

The power struggle between President Zardari’s Administration (on one side) and the courts and the military (on the other) has been described as toxic and perennially on the brink of crisis. This conflict has existed since the very formation of the country’s Islamic-Parliamentary Republic. “The conflict between Pakistan’s executive orders and judicial authorities dates back to the era of Liaquat Ali Khan (1947 -1951)7 when the country was in its teething years. (…) The public opinion remains that the judiciary of Pakistan is more inclined towards the military command and has favored it often.”8 It has been said by many scholarly observers that, “(T)he current tension between [President] Zardari and the judiciary is the direct result of unconstitutional judicial activism and aggression by Iftikhar Chaudhry.”9

The Pakistani Supreme Court (PSC) views itself as an independent institution which exercises jurisdiction within its constitutional domain. Recent statements of Chaudhry and Associate Justices suggest that they believe the function of the judiciary is to be a custodian of the Constitution and to check constitutional deviations and arbitrary exercises of power by other institutions so as to ensure rule of law and fair administration of justice. Although the PSC concedes that “corruption is a vice that is impinging upon the process of fair dispensation of justice by the judiciaries of developed as well as underdeveloped countries,” they profess the goal of upholding the integrity of the Constitution and judicial fairness to be the most important objectives. The PSC seems to enjoy the support of the vast majority of the Pakistani citizenry.10 This public support appears more evident in the wake of recent controversial judgments of the court.
Current Controversies
Two items of particular interest concerning the Pakistani Government, the PSC, and its questionable legitimacy, have dominated the news of late. They are “Memogate” and the charging of Prime Minister Gilani for his failure to revive an old corruption case that centers on President Zardari’s money-laundering conviction in Switzerland.11

The scandal often referred to as “Memogate” involves the forced resignation of Pakistan’s influential ambassador to the US, Husain Haqqani, after being accused of attempting to strike a secret deal with the Pentagon to rein in Pakistan’s powerful military. The events sparked a furor that threatened to engulf the Presidency and compromise the entire current system of government in Pakistan. Haqqani is alleged to have delivered a memo (via Pakistani-American businessman Mansoor Ijaz12) to the then US Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, in the tense days following the raid that killed Osama Bin Laden. The memorandum called on Mullen to dissuade his friend, Pakistan’s army chief General Ashfaq Kayani, from moving against the civilian government. In return, it offered a commitment by a reconstituted civilian government to be an ally to the US in matters of national security.13

 

Timeline14

The following timeline provides a perspective of the political events that shaped the history of Pakistan and gave rise to various conflicted moments.



October 1954:

 
The constituent assembly made some amendments to the Constitution which resulted in revocation of Malik Ghulam Muhammad’s power as a Governor General – rights which had previously empowered him to dismiss Khawaja Nazimuddin’s government.



1955: 
Following the decision made by the Constituent Assembly, Ghulam Muhammad dissolved the body – a move which was contested by Maulvi Tamiz-ud-din, President of Constituent Assembly, in Sindh High Court. The Court decided in favor of Maulvi Tamiz-ud-din but was reversed by the Supreme Court of Pakistan. This verdict was announced by Justice Munir.

August 1955: 
Iskander Mirza took charge as the fourth Governor General of Pakistan and dismissed Muhammad Ali Bogra.


For further details click here



October 1958: 
Iskander Mirza, with the assistance of his commander-in-chief Muhammad Ayub Khan, suspended the 1956 Constitution and declared the first martial law in Pakistan – which lasted until 1962. This step involved dissolution of provincial and national assemblies and the dismissal of various ministers.


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The coup and martial law seem to have been unconstitutional but were nevertheless permitted by Justice Munir. His actions played an active role in establishing the famous ‘doctrine of necessity’ – a term which signifies extra-legal action undertaken by the significant state actors in order to restore law and order in the country.



April 1973: 
Bhutto formulated the 1973 Constitution, which was drafted unanimously by the ruling and opposing parties of the country.


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August 1973: 
According to the 1973 Constitution, the power of decision making was at Prime Minister’s discretion. The President only served as the figurehead. Bhutto was sworn in as Prime Minister on August 14, 1973.



September 1976: 
Various amendments were introduced to the original constitution of 1973 by Bhutto. The change which instigated uproar from the judicial command of the country entailed the curtailing of authority and jurisdiction of the judiciary.


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January 1977: 
A strong formation of all the opposing political parties, under the umbrella of the Pakistan National Alliance (PNA), led Bhutto to call for early elections.


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March 1977: 
Elections were held in March and the PPP won by a heavy majority. The PNA refused to accept the results and accused the PPP of rigging the elections. The situation resulted in a strong movement against Bhutto. Masses poured out onto the streets and many political leaders were arrested for rebellion.


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July 1977: 
On July 5, 1977 the chief of army, Staff General Zia-ul-Haq, declared the third martial law in Pakistan and suspended the Constitution.


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November 1977: 
Nusrat Bhutto filed a petition in the Supreme Court of Pakistan against the martial law imposed by Zia-ul-Haq. The court sanctioned the imposition under the ‘doctrine of necessity.’


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April 1979: 
Bhutto was executed following charges of corruption and extrajudicial killings.


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Bhutto’s case remains one of the most intriguing and controversial political cases in the history of Pakistan. A bench of seven judges was constituted in order to decide the proceeding of ZAB’s case. Three judges acquitted him whereas four judges declared him responsible for ordering extrajudicial murders. However, when Bhutto filed a petition to review his case, all the seven judges rejected it outright.




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1980: 
Zia issued the infamous Provisional Constitutional Order (PCO) of 1980, which excluded all martial law actions from the jurisdiction of courts. However, Quetta High Court declared that the Order reached beyond the parameters of a martial law regime.

1981: 
After this ruling, General Zia issued the PCO of 1981, which required all the judges to take new oaths confirming that they will work in concurrence with the Order. As a result of this 16 judges were fired, and three refused to take oath, but the rest succumbed to the pressure.


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February 1985: 
General Zia-ul-Haq became President and Muhammad Khan Junejo was elected Prime Minister.



November 1985: 
The Eighth Amendment was introduced to the 1973 Constitution. The Amendment affected 19 clauses of the entire Constitution. The Constitution gave substantial power to the President of Pakistan – including the authority to dissolve the National Assembly.


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According to the newly added clause, all the decisions pertaining to the governance and administration of the country were to be made in consensus with the President. The articles and changes made to the Constitution changed the entire system from a parliamentary to presidential regime.





May 1988: 
General Zia dismissed the Junejo Government on alleged corruption charges.

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August 1988: 
General Zia-ul-Haq, along with his entourage and American officials, died in a plane crash.
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October 1988: 
During the case Haji Saifullah Khan vs. The Federation of Pakistan, the Supreme court of Pakistan declared the dissolution of the National Assembly by General Zia unconstitutional. The Court did not revoke the orders as the entire nation was already geared up for the elections.


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Elections of 1988: 
Soon after the death of Zia-ul-Haq, elections were held in the country and won by the PPP. Benazir Bhutto, the daughter of Zulfiqar Ali Bhutto, was elected as the first woman Prime Minister of Pakistan.

August 1990: 
Following the rising conflicts between Khan and Bhutto, Khan dissolved Parliament and sacked Bhutto on corruption charges. Ghulam Mustafa Jatoi was appointed interim Prime Minister.


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November 1990: 
The Pakistan Muslim League won the provincial and national elections. Mian Muhammad Nawaz Sharif was elected as Prime Minister.



April 1993: 
Sharif served as Prime Minister until April 19, 1993. Khan then dissolved Parliament again on charges of corruption by the Sharif Government and announced that elections would be held within the course of a few months. The elections were scheduled for July 14, 1993 but the Supreme Court declared Khan’s decisions invalid and reinstated Sharif as Prime Minister.


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July 1993: 


The mounting tensions and conflict between President and Prime Minister led to the resignation of both.


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October 1993: 
After the general elections of 1993, which were boycotted by significant political factions including the MQM, the PPP won with a heavy majority and Bhutto was elected Prime Minister for a second time.



November 1996: 
On the alleged charges of corruption and extrajudicial killings, Laghari dismissed the Bhutto Government and announced a date for new elections.


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February 1997: 
General elections were held on February 3, 1997. Sharif was elected Prime Minister for a second time.

April 1997: 
The Thirteenth Amendment was introduced to the Constitution, which strengthened the Prime Minister and gave him the right to appoint the chief of army staff and other important civil and military officials.


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The Thirteenth Amendment repealed the much controversial 58(2) b and reduced the powers of the President.



November 1997: 
The Supreme Court of Pakistan ordered Nawaz Sharif to appoint five judges. The order was ignored. Chief Justice Sajjad Ali Shah issued a contempt of court order against Sharif and summoned him to the Court. Sharif agreed to carry out the orders.


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One of the biggest mob attacks was staged on November 28, 1997 when thousands of political workers gate crashed the Supreme Court of Pakistan to protest against the contempt of court hearing.




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July 1999: 
Asif Ali Zardari is imprisoned following charges pertaining to corruption and money laundering by the Sharif Government.


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October 1999: 
The military command, headed by General Parvez Musharraf, took charge of the state of affairs and staged a coup against Sharif’s regime. Following the coup, Nawaz Sharif and his collaborators were arrested for various charges pertaining to hijacking and kidnapping but were later pardoned by the government and sent to exile in Saudi Arabia.


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February 2002: 
The Government decided to repeal the Thirteenth and Fourteenth Amendments to the 1973 Constitution introduced by Sharif.


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April 2002: 
A referendum was held in 2002. A majority voted for General Musharraf, resulting in his appointment as President for the next five years.


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2004: 
Asif Ali Zardari is released and leaves the country.
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March 2007: 
Chief Justice Iftikhar Muhammad Chaudhry was suspended by the President Musharraf as he refused to resign. Chaudhary was accused of corruption, misdemeanors, and the violation of judicial limits. His suspension instigated a political and judicial turmoil in the country – a turmoil which was considered one of the factors in the toppling of the Musharraf Government.


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July 2007: 
Chief Justice Iftikhar Muhammad Chaudhary was reinstated in a ruling headed by Justice Khalil-ur-Rehman Ramday.


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The ruling was handed down by a unanimous bench which decided that the petitions filed by President Musharraf were unfounded and flawed.



October 2007: 
Musharraf won the Presidential election but was challenged by the Supreme Court.

November 2007: 
President Musharraf declared a state of emergency and suspended the Constitution. Parliament was dissolved.


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Musharraf also ordered the house arrest of the Chief Justice and the judges responsible for his reinstatement.



December 2007: 
Musharraf revoked his previous orders and lifted the state of emergency on December 15, 2007.



February 2008: 
General elections were held in February 2008. The Pakistan People’s Party and the Pakistan Muslim League-N won a major share of the seats. Both parties formed a coalition government. Yousuf Raza Gilani was elected Prime Minister.

June 2008: 
A long march was organized by lawyers who sought the restoration of Iftikhar Mohammed Chaudhry as Chief Justice. The march concluded in Islamabad on June 14. Participants demanded the ouster of President Musharraf.

For further details click here

August 2008: 
The ruling coalition (PPP and PML-N) decided, for the third time, to reinstate Chaudhry.



August 2008: 
President Musharraf resigned after the Coalition launched impeachment proceedings against him.
For further details click here

August 2008: 
PML-N left the Coalition as the Government failed to reinstate the Chief Justice.

September 2008: 
Asif Ali Zardari won the Presidential election.


For further details click here



December 2009: 
The Supreme Court of Pakistan issued a petition to consider NRO 2007 to be null and void. The Ordinance provided immunity, inter alia, for money launderers and embezzlers. It was had been drafted and approved by President Musharraf. The Court asked the National Accountability Bureau (NAB) to reopen the cases against President Zardari regarding the Swiss scam (allegations which the Premier out rightly denies to date).

October 2011: 
Mansoor Ijaz wrote an article in the Financial Times revealing that he delivered a memorandum written by a Pakistani official posted in the US to Admiral Mike Mullen. The revelation created a frenzy of activity in Pakistan, bringing the role of then ambassador to the United States, Husain Haqqani, into question.


For further details click here

The memo is speculated to have been written just after Osama bin Laden’s killing and allegedly seeks help from the US to rein in the country’s military and intelligence agencies.




For further details click here



November 2011: 
Hussain Haqqani resigns from his position amidst chaos and allegations pertaining to the controversial memo.


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December 2011: 
Nawaz Sharif and his alliance filed a petition in the Supreme Court of Pakistan to further investigate the memo scandal. The Supreme Court of Pakistan declares that the petitions filed by Sharif and other political leaders to further investigate the memo scandal are ‘maintainable.’ Prime Minister Yousuf Raza Gilani publicly announced that he and his party members will not accept ‘a state within a state’ – a remark which instigated a sense of disagreement between the civil and military command within the country.


For further details click here

However, General Kayani reiterated that the army does not aim to ‘stage a coup’ and that this was simply another tactic deployed by the Government to digress from memo scandal.





January 2012: 
The Supreme Court of Pakistan issued a warning against the Government to implement and execute the National Reconciliation Ordinance (NRO) of December 2009 by writing to the Swiss Government. Prime Minister Yousuf Raza Gilani dismissed Defense Secretary Khalid Naeem Lodhi on grounds of alleged misconduct.


For further details click here

Gilani is issued a contempt of court notice in the NRO implementation case, and is directed to appear before the Supreme Court on January 19. He appoints Barrister Aitzaz Ahsan to represent him.




For further details click here

The Supreme Court suspends Babar Awan’s license to practice and demands that he is replaced by another lawyer.




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Prime Minister Gilani appears in the Supreme Court to defend the contempt of court charges filed against him. The Court adjourns the session by postponing the hearing until February 1, 2012. The Court subsequently exempts Gilani from appearing in the next scheduled hearing.




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The memogate case took an interesting turn when Ijaz refused to come to Pakistan over security concerns. This led Haqqani to file an application to disqualify Ijaz from the proceedings of the case.




For further details click here and here

February 2012:
The Supreme Court announces its verdict on February 2, 2012. Gilani will be indicted on charges pertaining to contempt of court. Gilani has been summoned to appear before the Court on February 13, 2012. He has decided to file an appeal before that date.

For further details click here.

1 Constitution of The Islamic Republic of Pakistan - http://www.mofa.gov.pk/Publications/constitution.pdf.

2 Protection of Women (Criminal Laws Amendment) Act, 2006 http://www.pakistani.org/pakistan/legislation/2006/wpb.html.

3 Contents of New Constitution of Pakistan - http://www.pakistani.org/pakistan/constitution/.

4 The Judicial System of Pakistan – Dr. Faqir Hussain, Registrar, Supreme Court of Pakistan, Faculty, Punjab Law College.

5 The standing practice is that the Chief Justice recommends a list of names to the President who then selects Judges from the said list. The recommendation of the Chief Justice is binding on the President, except for sound reasons (to be recorded by the President). The most senior judge is appointed as the Chief Justice, except for concrete and valid reasons (to be recorded by the President).

6 The Hudood Ordinances are a highly controversial set of laws enacted by Military ruler Zia ul-Haq in 1979. They criminalize such practices as adultery and fornication, and allow for harsh physical punishments including death for those found guilty of such an offense. The Women’s Protection Bill, passed by the National Assembly of Pakistan in November of 2005, was an attempt to amend the Hudood Ordinances.

7 Nawabzada Liaquat Ali Khan, often simply referred as Liaquat, was one of the leading Founding Fathers of modern Pakistan, statesman, lawyer, and political theorist who became and served as the first Prime Minister of Pakistan and was also the first Defense Minister and Minister of Commonwealth and Kashmir Affairs from 1947 until his assassination in 1951. (Mughal, Prof Dr M Yakub. "A worthy successor to the Quaid"Prof. Dr. M Yakub Mughal, Professor of Political History at University of Punjab). Professor Dr. M. Yakub Mughal, professor of Political History. Retrieved 27 January 2012.).

8 Dawn.com article 1/25/12 - http://www.dawn.com/2012/01/25/timeline-judiciary-vs-executive-conflict.html.

9 Judge Dread, India Today, January 21, 2012 - ­http://indiatoday.intoday.in/story/pakistan-chief-justice-iftikhar-muhammad-chaudhry-on-judiciary/1/169822.html.

10 “Pakistan’s Military, high court both fed up with President” – January 15, 2012 – Los Angeles Times – http://www.latimes.com/news/nationworld/world/la-fg-pakistan-zardari-court-20120116,0,6227102.story.

11 Prime Minister Gilani – Video Summary: http://www.bbc.co.uk/news/world-asia-16857811.

12 Mr. Ijaz claims he was contacted by Mr. Haqqani at the direct instruction of President Zadari.

13 CNN article December 8, 2011 - http://www.cnn.com/2011/12/07/opinion/ijaz-pakistan-memogate/index.html.

14 Judiciary vs. Executive Conflict – Dawn.com – January 25, 2012 – http://www.dawn.com/2012/01/25/timeline-judiciary-vs-executive-conflict.html.


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