Editor’s Note: Today we publish the 2016 Report on Pakistani constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Moeen Cheema, Senior Lecturer and the Convenor of the LLM program in Law, Governance and Development, Australian National University College of Law
Since the retirement of the former Chief Justice Iftikhar Chaudhry at the end of 2013, Pakistan’s apex court has progressively looked to extricate itself from the political limelight.
The era of the ‘Chaudhry Court’ was marked by extraordinary exertions of judicial power such that the judiciary had emerged as one of the most prominent players in the country’s governance system. However, this was also a period during which the charges of judicial activism and overreach beyond constitutional bounds had to some extent tarnished the court’s standing, and the Chaudhry Court was increasingly seen as an overtly political institution. As a result, with the end of the Chaudhry era, the judiciary was under pressure to show restraint on a range of political questions and confine itself to a more traditional role. Given the relatively short tenures of the Chief Justices who followed in Chaudhry’s footsteps, the court also appeared to lack strong leadership and clear direction.
Within a span of less than two years, three chief justices assumed office and completed their tenures as per the mandatory appointment and retirement terms under the Constitution. Quite poetically, the 23rd Chief Justice of the Supreme Court served a mere 23 days in that office. Anwar Zaheer Jamali, the 24th Chief Justice, assumed office in September 2015 for a tenure that was scheduled to end on 30 December 2016. Chief Justice Jamali appeared determined to put the public law jurisdiction of the Supreme Court in a hiatus and reduce this constitutional court to a purely appellate forum. This is an endeavour he nearly succeeded in despite the political storms blowing over on the capital’s Constitution Avenue, on which the Supreme Court of Pakistan sits between the Parliament and the Prime Minister’s Secretariat.
2016 was thus the year of the Supreme Court’s ultimately futile attempt to dust off a political question doctrine and voluntarily hand back the powers it had accumulated over the last decade. That it failed despite such conscious effort reveals the extent to which the court has become a central player in Pakistan’s constitutional scheme, which appears to be the lasting legacy of the Chaudhry Court.
II. The Constitution and the Court
Prior to analysing the reluctant constitutionalism of the Supreme Court in 2016, it may be useful to briefly outline Pakistan’s constitutional scheme and the place of the judiciary in it. Pakistan’s 1973 Constitution, which has undergone several major changes, provides for a federal and parliamentary system of government in its present form.
The federation is composed of four provinces and four territories. The Punjab is the largest province in the country, with more than half the population of the country residing therein. The dominance of the Punjab in the political system and overwhelming representation in the military and bureaucracy has historically been the source of tension amongst the federating units. The 18th Amendment to the Constitution, passed in 2010, transferred considerable powers and legislative competencies to the provinces, thereby alleviating some of the historical grievances on the part of the smaller provinces.
However, the general elections held in 2013 resulted in a political landscape whereby the Pakistan Muslim League (PML) of the incumbent Prime Minister Nawaz Sharif won the overwhelming majority of the seats for both the provincial and the national legislatures in the Punjab, thereby enabling the party to form the federal government. The major opposition parties – the PTI, led by famous cricketer-turned-politician Imran Khan, and the PPP, headed by former president Asif Ali Zardari – succeeded in forming the provincial governments in two of the other provinces. While this initially created optimism for the emergence of a positive strand of competitive federalism whereby the different provincial governments may be incentivised to outperform each other in governance, the political system has somewhat reverted to the old scheme of inter-provincial resentment at the dominance of the Punjab in policymaking and allocation of resources by the federal government as well as fierce political competition between the various political parties.
Another key issue that has historically been salient in Pakistan’s constitutional politics is the dominance of the military. While Pakistan was meant to be a parliamentary democracy under the 1973 Constitution, the country has experienced two extended periods of military rule, from 1977-1988 and again from 1999-2007. Despite the ouster of the military from a direct role in governance, Pakistan remains a weak and transitional democracy with the military retaining the capacity to by and large dictate important aspects of foreign and national security policy. There are lingering concerns that political instability caused by street protests by the opposition parties risks weakening the government, thereby further empowering the military.
Since 2002 Pakistan has been plagued by a multi-faceted and complex problem of terrorism, militancy and insurgency which has caused enormous loss of life and economic impact. During its fight against militancy, terrorism and insurgency, the military has acquired considerable influence over domestic security policies as well.
In the aftermath of a particularly gruesome attack on a school in December 2014, the military was able to generate sufficient public pressure to compel all the major parties to agree on the 21st Amendment, which sanctioned the establishment of military courts to try terrorists for an initial period of two years. The constitutionality of the amendment was challenged before the Supreme Court in 2015 on the basis that it violated the ‘basic structure’ of the Constitution. While the court upheld the validity of the amendment by a considerable majority, it was notable that six judges wrote dissenting opinions questioning the constitutionality of the constitutional amendment.
Pakistan’s judiciary is composed of three tiers – a hierarchy of subordinate judiciary in the districts and several special courts and tribunals; a High Court in each of the provinces as well as the capital territory of Islamabad; and the Supreme Court at the apex. In addition to having an appellate jurisdiction in civil and criminal cases decided by the subordinate judiciary, the High Courts have a prominent judicial review or ‘Writ’ jurisdiction under Article 199 of the Constitution. Although Article 199 does not use the nomenclature of the prerogative writs it does grant the High Courts powers to issue orders in the nature of certiorari, mandamus, habeas corpus and quo warranto. Furthermore, it gives the High Courts the power to ‘make an order giving such directions to any person or authority … as may be appropriate for the enforcement of any of the Fundamental Rights.’
The Supreme Court sits as the appeal court from the decisions of the High Courts under Article 185, including in cases under their Writ jurisdiction. In addition, the court has an ‘Original Jurisdiction’ under Article 184(3) to directly hear questions of ‘public importance with reference to the enforcement of any of the Fundamental Rights’ and has the power to issue any order of the nature that the High Courts can issue under Article 199.
Since the 1990s, the Supreme Court has liberalised standing requirement and procedural formalities in cases falling under its Original Jurisdiction in order to create the scope for Public Interest Litigation. The court also granted itself the power to take up cases suo motu – that is, even in the absence of a petitioner. The Chaudhry Court made a dramatically expanded use of the Original Jurisdiction by entertaining or initiating suo motu petitions challenging a range of governmental action including several prominent cases of mega corruption scandals against the federal government; highest appointments in the bureaucracy, public corporations and regulatory bodies; as well as human rights cases involving abuse of powers by the police, bureaucracy and local politicians. In one prominent and highly controversial case in 2012, the Chaudhry Court convicted the incumbent Prime Minister of contempt for refusing to follow the court’s direction to re-initiate money laundering and corruption investigations against President Zardari. The court subsequently held that the elected Prime Minister was disqualified from being a Member of Parliament and dismissed him from office.
As noted earlier, the post-Chaudhry Supreme Court attempted to reduce its political footprint but struggled to completely extricate itself from adjudicating controversies of pure politics. By late 2014, for example, after making several public demands on the Supreme Court to take up allegations of large-scale rigging in the 2013 elections, the opposition PTI launched a ‘Long March’ on the capital Islamabad and successfully organized a protest sit-in on Constitution Avenue opposite the Parliament and the Supreme Court. As Pakistan veered dangerously close to political instability, speculations of yet another military coup were rife.
Nonetheless, the Supreme Court, which appeared to be the only constitutional institution capable of resolving this crisis, remained steadfastly on the sidelines. Ultimately, however, the judiciary was dragged in the middle of the controversy when the government and opposition agreed on the formation of a commission of Supreme Court judges to investigate the claims of large-scale rigging. In July 2015, after extensive hearings, the judicial commission found that while there had been several irregularities and errors, the elections were by and large fair. The opposition accepted the commission’s findings even if grudgingly and the judiciary thus succeeded in ending a protracted controversy which had nearly led to the ouster of yet another elected government through extra-constitutional means. Such was the immediate context to Chief Justice Jamali’s ascension and partially explains his resolve to take the Supreme Court further away from the political spotlight.
III. Constitutional Controversies
The relative calm enjoyed by the Supreme Court during the first six months of Chief Justice Jamali’s tenure was shattered in April 2016 by the storm of ‘Panamagate’ when the International Consortium of Investigative Journalists made millions of confidential documents held by a Panamanian law firm publicly available. These leaks revealed the connections of the ruling Sharif family – the Prime Minister, his brother the Chief Minister of Punjab and his two apolitical sons residing in the UK, and his daughter, who has been groomed as the heir apparent – with at least eight offshore companies which owned some of the most expensive properties in London.
The Panama leaks thus gave credence to long-standing allegations of corruption and money laundering dating as far back as the early 1990s when Nawaz Sharif enjoyed the first of his three tenures as Prime Minister.
Under pressure from the opposition, the Prime Minister made an address to the nation and then before the Parliament proffering vague explanations of his family’s fortunes and offering himself up for accountability. The Prime Minister first sought to create an inquiry commission composed of retired judges but after criticism sent a request to Chief Justice Jamali to constitute a judicial commission of Supreme Court judges to probe the Panama controversy. The Chief Justice, however, declined to form a commission on the grounds that the terms of reference sent by the Prime Minister were so broad that it would take the omission several years to conclude its proceedings.
After extended wrangling between the government and opposition parties over the terms of reference of a judicial commission, the PTI filed a petition before the Supreme Court in August 2016 seeking the disqualification of the Prime Minister on the grounds that he had lied before Parliament in his address and had failed to disclose his assets before the Election Commission prior to contesting the last elections. Simultaneously, the PTI launched a campaign of protest gatherings across the country. As the political temperature soared, the Supreme Court refused to act.
In October, six months after the Panama leaks, Imran Khan called upon the rank and file of the PTI to march to Islamabad and forcibly lock down the capital. The day before the scheduled lockdown, amidst a police operation and the looming threat of violent protests, the Supreme Court finally acted to defuse the tensions by announcing the formation of a larger bench headed by the Chief Justice to hear the Panama case and expedite the proceedings. Throughout November, the court gathered extensive documentation form both parties and began hearings. However, the proceedings were prematurely and somewhat abruptly ended on December 9 citing the Chief Justice’s impending retirement and the scheduled holidays. Quite problematically, the court also declared that the proceedings conducted thus far would be disregarded and a new bench constituted by the incoming Chief Justice would proceed afresh.
The judicial year 2016 and the tenure of Chief Justice Jamali thus ended with a whimper, accurately symbolizing the equivocations of the apex court in the face of challenging constitutional crises.
IV. Major Cases
The few cases of constitutional significance decided by the Supreme Court in 2016 reveal the absence of a coherent judicial agenda. Several of these cases represent significant retrenchment of the Supreme Court’s role or its refusal to exercise robust review of governmental action.
A. Separation of Powers
As noted earlier, one of the most critical issues falling under the head of the separation of powers concerns the role of the military. Formally, the military is a subordinate agency of the executive but has historically enjoyed tremendous influence over foreign and national security policymaking even under civilian governments. In 2016, the Supreme Court continued to turn a blind eye towards the military’s de facto power. For instance, a bench headed by Chief Justice Jamali upheld the convictions and award of capital punishment to proclaimed terrorists by military courts established pursuant to the 21st Amendment. The court claimed a rather narrow jurisdiction to review the record of the decisions of the military courts and disavowed appeals on the merits of individual cases. The court further held that the trials by military courts did not contravene the right to fair trial under Article 10-A of the Constitution. This is highly problematic given the weak procedural safeguards, lack of transparency and the heavy reliance on confessions and secret evidence by the military courts.
As regards the civilian government in contrast, a rare decision of the court in 2016 can be highlighted as deepening the democratic process in Pakistan. In Mustafa Impex, the court was called upon to define federal government and who can exercise the powers vested in the federal government. Article 90 states that ‘the executive authority of the Federation shall be exercised … by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister.’ Essentially, the question before the court was whether the Prime Minister could, independently of the Cabinet and while exercising a discretionary authority, make fiscal decisions on behalf of the federal government. The court held that the federal government includes the Prime Minister and his Cabinet, and even though the Prime Minister is first amongst equals he cannot solely act on behalf of the federal government without the approval of the Cabinet. The court further held that the powers of the federal government could not be delegated to a subordinate official and financial notifications issued by the Secretary of the Finance Division without the approval of the Cabinet were void. This judgment ended the established practice of department secretaries exercising powers of the federal government without prior Cabinet approval. It also compelled the Prime Minister to convene regular meetings of the Cabinet. While the reality of the ruling party, which is dominated by the Sharif family is such that cabinet meetings will continue to be largely rubber-stamping exercises, this decision nonetheless compels formal consultation with the Cabinet on the exercise of executive and fiscal powers of the federal government.
B. Rights and Freedoms
In a criminal appeal decided in late 2015 and reported in early 2016, the Supreme Court made the first categorical pronouncement on vigilante action against those accused of blasphemy. The misuse of blasphemy laws has become an issue of grave concern as there have been several gruesome cases involving unfounded accusations of blasphemy or religious desecration which resulted in mob violence and killings of those accused. While many such incidents have involved accusations against people belonging to religious minorities – especially Christians and Ahmadis – several cases have involved blasphemy allegations against Muslims as well. In one such case a police guard killed the late governor of Punjab Salman Taseer after he criticised the abuse of blasphemy laws in a case involving a Christian woman and called for changes in the legislation. In the final appeal in the Mumtaz Qadri case, a bench of the Supreme Court upheld the conviction and the award of capital punishment. Notably, the court held that criticizing blasphemy law was not tantamount to committing blasphemy itself. Furthermore, it dismissed the plea of provocation, held that the vigilante killing of a person accused of blasphemy was unjustifiable murder and even reinstated the original charge under the anti-terrorism legislation given the circumstances in which the murder had been committed by a police guard in a public place. The court subsequently dismissed a review petition which had attempted to raise questions of Islamic law on the basis that these had not been argued in the original appeal. In addition to its significant precedential value in cases of vigilante violence in the aftermath of blasphemy accusations, the case also demonstrated the courts capacity to deal with highly contentious terrorism incidents.
C. Foreign Relations
In August 2015, a three-member bench of the Supreme Court headed by the then Chief Justice Jawad S Khawaja declared the issuance of licenses to hunt the endangered Houbara Bustard to be illegal on the grounds that the practice not only violated federal and provincial laws but also relevant commitments under international law. Despite the protected nature of this rare bird species, the provincial governments of Balochistan and Sindh had issued such licenses to visiting Arab dignitaries and the federal government argued for the continuance of this practice before the Supreme Court on the basis that this was vital for maintaining friendly relations with important allies in the Middle East.
Merely a few months after this decision, the concerned provincial governments and the federation filed a review petition in the case. By this stage, Justice Jawad S Khawaja had retired and had been replaced by Justice Jamali. Exercising his discretion in the constitution of the bench, Chief Justice Jamali departed from established convention and rules and constituted a larger bench of five judges to hear the review petition. Even more exceptional was the decision not to include one of the other judges from the original bench in the review petition.
By a majority of 4-1, the larger bench reversed the original decision of the Supreme Court and reinstated the licenses. Justice Qazi Faez Isa, who had authored the first decision, now wrote a scathing dissent criticizing the decision to constitute a larger bench, the exclusion of the other serving judge and the reversal on the basis of a palpable error on the face of the record.
This case provided clear evidence of ideological affinity between and the willingness on the part of the Jamali-led court to placate the government. It also provided indication of problematic personal and possibly business links between the Sharif family and Arab royals, an issue that became explicit as the Panama case dragged on. When it appeared that the Sharif family would fail to provide any proof of how it generated and transferred funds to invest in multiple steel mills in gulf states, from the sale of which it had ultimately acquired the London properties, a prominent member of the Qatari royal family produced a letter of dubious veracity claiming that the funds had been provided by him as profits of investments by the Prime Minister’s late father decades earlier. The Sharif family’s unduly close links with Saudi and Gulf royalty have emerged as a source of concerns in an agreement by Pakistan to purchase LNG from Qatar at seemingly inflated prices as well as the government’s willingness to support the foreign policy objectives of the Saudi government in the Middle East even when this does not appear to be in Pakistan’s best interests.
D. Other Decisions Impacting Judicial Power
Upon assuming office, Chief Justice Jamali declared 2016 to be the year of judicial accountability. However, the Chief Justice failed to make any stride towards reinvigorating the Supreme Judicial Council, the constitutional body mandated to hold judges accountable. Nonetheless, one decision of the court went some way towards instituting good administrative practices in the judiciary. In the Islamabad High Court case, the Supreme Court entertained a petition under its Original Jurisdiction questioning the legality of administrative appointments, promotions and transfers at the time of the founding of the High Court of the capital territory. The Supreme Court found several instances of irregularities and breaches of rules in the appointment and transfer of the administrative staff in the High Court. As a consequence, one judge of the Supreme Court who had been the chief justice of the High Court during the impugned period resigned from his office. The case set an important precedent for transparent and meritocratic processes in the appointments, promotions and transfers of administrative staff not only in the courts but also other public organizations. In addition, a handful of suo motu cases taken up by Chief Justice Jamali nominally continued the practice of the court taking up human rights issues based on media reports. There is no clear pattern or logic to these rare suo motu actions beyond a minimal assertion of the court’s power to undertake such actions.
V. Postscript on the Panama Case
In January 2017, a reconstituted five-member bench of the Supreme Court took up the issue of the Panama leaks, corruption charges against the Prime Minister and his family, and his potential disqualification – matters that had been belatedly and grudgingly taken up by the Jamali-led bench in late 2016 and had been left unresolved after the consumption of considerable court time. After regular hearings, the bench reserved its judgment on February 23. On April 20, after a delay of nearly two months, the bench published its much-awaited judgment according to which Prime Minister Nawaz Sharif narrowly avoided immediate disqualification. Instead, by a narrow majority of 3-2, the court ordered the creation of a Joint Investigation Team composed of members from various civilian and military agencies to investigate the charges of corruption and money laundering against the Prime Minister and his family. While only the two judges in the minority found sufficient basis to disqualify the Prime Minister without further investigation, all the members of the bench recorded adverse observations against him. It appears that the majority of the Supreme Court bench essentially decided to kick this political football further down the field, thereby ensuring that the Panama leaks controversy will continue to dominate Pakistan’s politics for at least a few months.
The majority decision in the Panama case saga represents to some extent a hangover of the reluctant constitutionalism of Chief Justice Jamali’s tenure. Billed by some as the anti-Chaudhry court, the Jamali-led Supreme Court tried to make a virtue of indecision and lack of purpose by claiming a righteous form of judicial restraint. Its ultimately futile attempt to stand fully apart from political controversies that only an impartial and credible judiciary may resolve highlights the lasting legacy of the Chaudhry era. Pakistan’s superior judiciary has irreversibly evolved from a peripheral institution to a central player in constitutional politics and statecraft. The strength of the dissents in the Panama case may indicate that in the coming years the Supreme Court may finally learn to embrace its prominent role and adjudicate challenging constitutional controversies with credibility.
 Criminal Original Petition No. 06 of 2012, In Suo Motu Case No. 04 of 2010, P.L.D. 2012 S.C. 553.
 Muhammad Azhar Siddique v. Federation of Pakistan, P.L.D. 2012 S.C. 660.
 Moeen Cheema, “Election Disputes” or Disputed Elections?: Judicial (Non-)Review of Elections in Pakistan’ in P J Yap (ed), Judicial Review of Elections in Asia (Routledge 2016).
 Hasnat Malik, ‘SC upholds death penalty for 16 terrorists’ (The Express Tribune, 30 August 2016) < https://tribune.com.pk/story/1172316/sc-upholds-death-penalty-16-terrorists/>.
 Messers Mustafa Impex, Karachi v. Government of Pakistan, P.L.D. 2016 S.C. 808.
 Malik Muhammad Mumtaz Qadri v. State, P.L.D. 2016 S.C. 17.
 Malik Muhammad Mumtaz Qadri v. State, P.L.D. 2016 S.C. 146.
 Government of Punjab v. Aamir Zahoor-Ul-Haq, P.L.D. 2016 S.C. 421.
 Muhammad Akram v. Registrar, Islamabad High Court, P.L.D. 2016 S.C. 961.
 Haseeb Bhatti and Naveed Siddiqui, ‘Panamagate verdict: PML-N declares “victory”, Supreme Court orders JIT probe of Sharif family’ (The Dawn, 20 April 2017) https://www.dawn.com/news/1327961/panamagate-verdict-pml-n-declares-victory-supreme-court-orders-jit-probe-of-sharif-family.