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.
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.
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.
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:
Newly appointed justices who never took any sort of oath on any PCO have been removed.
Sitting justices who took oath on PCO 2007 are still acting as justices, though their cases are to be sent to Supreme Judicial Council.
Sitting justices who accepted reappointed and took oath from Justice Dogar as still acting as justices of court with no action.
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:-
Mr. Justice Pervez Ali Chawla
Mr. Justice Habib Ullah Shakir
Mr. Justice Nazir Ahmed Ghazi
Mr. Justice Abdul Sattar Goraya
Mr. Justice Syed Ihtasham Qadir Shah
Justice Ms. Jamila Jahanoor Aslam
Mr. Justice Mahmood Akhtar Khan
Mr. Justice Jamshed Rahmat Ullah
Mr. Justice Pervez Inayat Malik
Mr. Justice Arshad Mahmood
Mr. Justice Irfan Qadir
Mr. Justice Syed Zulfiqar Ali Bukhari
Mr. Justice Ch. Naeem Masood
Mr. Justice Anwar-ul-Haq Pannu
Mr. Justice Muhammad Shafqat Khan Abbasi
Mr. Justice Imtiaz Rasheed Siddiqui
Mr. Justice Bin Yamin
Mr. Justice Khalid Ali Z. Qazi
Mr. Justice Salman Ansari
Mr. Justice Abdul Rehman Farooq Pirzada
Mr. Justice Abdul Rasheed Klwar
Mr. Justice Zafar Ahmed Khan Sherwani
Mr. Justice Syed Mehmood Alam Rizvi
Justice Ms. Soofia Latif
Mr. Justice Maqbool Ahmed Awan
Mr. Justice Safdar Ahi Bhutto
Mr. Justice Moharram G. Baloch
Mr. Justice Malik Muhammad Aqil
Mr. Justice Syed Shafaqat Ali Shah Masoomi
Mr. Justice Muhammad Iqbal Mahar
Mr. Justice Khadim Hussain M. Sheikh
Mr. Justice Muhammad Ismail Bhutto
Mr. Justice Arshad Siraj Memon
Mr. Justice Aamir Raza Naqvi
Mr. Justice Muhammad Karim Khan Agha
Mr. Justice Salman Talibuddin
Mr. Justice Shaji Rehman Khan
Mr. Justice Ghulam Mohayuddin Malik
Mr. Justice Ziauddin Khattak
Mr. Justice Syed Mussaddiq Hussain Gilani
Mr. Justice Syed Yahya Zahid Gilani
Mr. Justice Muhammad Alam Khan
Mr. Justice Mazhar Hussain Minhas
Mr. Justice Muhammad Ashraf Bhatti
Mr. Justice Rana Zahid Mehmood
Mr. Justice Kazim Ali Malik
Mr. Justice Hafiz Tariq Nasim
Mr. Justice Khalil Ahmad
Mr. Justice MA Zafar
Mr. Justice Malik Saeed Ejaz
Mr. Justice Syed Shaheen Masud Rizvi
Mr. Justice Ali Akbar Qureshi
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.
[edit]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.
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