A History of the Judiciary in Pakistan

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A History of the Judiciary in Pakistan

By Hamid Khan
Oxford University Press May 2016

Specifications

ISBN-13
9780199068609
Publisher
Oxford University Press
Publication
May 2016
Format
Hardback
Jurisdiction
Pakistan ? Countri(es) for reference only
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One of the major organs of the state, the judiciary in Pakistan attained a particularly high profile in recent years owing to former President Musharrafas attempt to remove the Chief Justice of Pakistan and the latteras eventual restoration to office. The exercise of suo moto jurisdiction by the Supreme Court in the matter of enforcement of fundamental rights further enhanced interest in the judiciary, which became a focal point for popular aspirations.

This book undertakes a comprehensive study of judicial history in Pakistan since Independence. It includes detailed discussion of the acts, lives and judgments of important Pakistani judges, with their continuing effects on the life of the nation. Lawyers, judges and law professors and students of law, political science and history will find this book of particular value, as will the general reader.

Table of Contents

Table of Cases xv
Preface xxv
Introduction 1
1. THE JUDICIARY AT THE TIME OF INDEPENDENCE 9
Judiciary in India Before Partition 9
The Federal Court of India 10
The High Courts in India 11
Judiciary in the Territories Forming Pakistan 12
The Lahore High Court 12
The Sindh Chief Court 13
Judicial Commissionersâ Courts at Peshawar and Quetta 13
The High Court of East Bengal 14
Adaptation of Laws 15
2. ESTABLISHMENT OF THE FEDERAL COURT OF PAKISTAN UNDER MIAN ABDUR RASHID (1949â1954) 17
Leading Cases Decided by the Rashid Court 19
Rawalpindi Conspiracy Case 25
Appointments in the Federal Court 26
The High Courts During this Period 27
3. JUDICIARY BECOMES CONTROVERSIAL: THE MUNIR COURT (1954â1960) 30
Appointment of Munir as Chief Justice 30
Munir Court on Trial 32
Maulvi Tamizuddin Khan Case 32
Appeal Filed by the Federal Government 34
The Federal Court Judgement 35
Dissent of Justice A. R. Cornelius 36
Concluding Remarks 39
Usif Patel Case 43
Governor Generalâs Reference to the Federal Court 45
The Doctrine of State N ecessity 49
The Impact of Constitutional Cases 51
The Merger of the High Courts in West Pakistan 53
The Judiciary Under the Constitution of 1956 55
Performance of Judiciary Under Munir Until the Martial Law of 1958 58
The Judiciary After the Martial Law of O ctober 1958 62
The Dosso Case 62
Mehdi Ali Khan Case 64
Other Significant Judgements After the Declaration of Martial Law 65
Important Judgements During the Period 1956â1960 68
Composition of the Federal Court and the Supreme Court Under Munir 74
The High Courts Under Munir 75
The Munir Report 77
Munir: The Man and the Judge 78
4. THE GOLDEN PERIOD OF THE JUDICIARY: THE CORNELIUS COURT (1960â1968) 86
Shahabuddin and His Court 86
A. R. Cornelius and His Court 88
The High Courts During the Cornelius Era 89
The Judiciary Under the Constitution of 1962 93
The Supreme Courtâs Judgement in Maududiâs Case 98
Snelson Case 99
Other Leading Constitutional Cases During the Cornelius Court 102
Cornelius on Bias of a Judge 109
Manner of Appointment of Judges of the High Courts 112
Cornelius: The Man and the Jurist 113
5. THE JUDICIARY UNDER S. A. RAHMAN AND FAZLE AKBAR 121
The Judiciary Under Ayub Khan 124
6. TURBULENT TIMES: THE HAMOOD COURT (1968â1975) 127
The Fall of Ayub Khan and the Martial Law of Yahya Khan:
The Judiciary on Trial 127
The Mir Hassan Case 130
Dissolution of the West Pakistan High Court 131
Composition of the Supreme Court (1968â1971) 133
Accountability of Judges: Removal of Shaukat Ali 134
The High Court of East Pakistan Until the Fall of Dacca 135
High Courts in West Pakistan (later Pakistan) 138
Composition of the Supreme Court After the Break-up of Pakistan 140
Important Constitutional Cases Decided by the Hamood Court 143
Other Important Cases Decided by the Hamood Court 156
Hamoodur Rahman: The Man and the Judge 159
7. THE DECLINE OF THE JUDICIARY BEGINS: THE YAQUB COURT (1975â1977) 163
Fourth Amendment: The Jurisdiction of Courts Curtailed 163
Fifth Amendment: Judiciary Rendered Weak 164
Constitution (Fifth Amendment) Act, 1976 164
New Law for Contempt of Court 166
Abrar Hassan Case 167
Establishment of the Baluchistan High Court 168
Yaqub Aliâs Amendment: Sixth Amendment to the Constitution 169
The High Courts and their Workings 169
Partial Martial Law and the Verdict of the Lahore High Court 171
Composition of the Supreme Court Under Yaqub Ali 172
Martial Law of General Zia ul-Haq 173
Withdrawal of the Fifth and Sixth Amendments: Removal of Yaqub Ali 174
Important Cases Decided by the Yaqub Court 174
Yaqub Ali: The Man and the Judge 177
8. THE MILITARY OVERPOWERS THE JUDICIARY: THE ANWAR COURT (1977â1981) 181
The Military and Judiciary in Partnership 182
The N usrat Bhutto Case and the Doctrine of N ecessity 184
The High Courts and the Doctrine of N ecessity 191
Bhuttoâs Trial and Execution 192
(i) Maulvi Mushtaq Hussain 192
(ii) Detention and Cancellation of Bhuttoâs Bail 193
(iii) Bhuttoâs Trial 195
(iv) Was the Trial Fair? 196
(v) The Judgement of the High Court 197
(vi) Appeal Before the Supreme Court 198
(vii) Retirement of Members of the Supreme Court Bench 199
(viii) The Judgement in Appeal 200
(ix) Review Application and its Dismissal 201
(x) Controversy O ver the Supreme Court Verdict 201
(xi) The Execution of Bhutto 204
Superior Courts Empowered to Declare Laws Un-Islamic 204
Deteriorating Relations Between the Judiciary and Military 205
Military Courts Introduced in the Constitution: Article 212-A 206
Fall of Maulvi Mushtaq Hussain 208
Baluchistan High Court Makes Bold Decisions 210
The Federal Shariat Court 212
Permanent Benches of the High Courts Established 213
The Provisional Constitution O rder, 1981 214
Judiciary Humiliated and the Fall of Anwar ul Haq 216
Composition of the Supreme Court Under Anwar ul Haq 218
Important Cases Decided by the Anwar Court 220
Anwar ul Haq: The Man and the Judge 225
9. DARK DAYS OF THE JUDICIARY: THE HALEEM COURT (1981â1989) 231
Change in the Composition of the Superior Courts 231
The Provisional Constitution O rder (PCO) Upheld 233
The High Courts from 1981 to 1989 234
Performance of the Haleem Court Before the Death of Zia 243
Performance of the Haleem Court After the Death of Zia 248
Other Important Constitutional Cases Decided by the Haleem Court 252
Conflict O ver Appointment of Judges 256
Muhammad Haleem: The Man and the Judge 258
10. YEARS OF JUDICIAL CONFUSION: THE ZULLAH COURT (1990â1993) 262
Composition of the Supreme Court Under Zullah 263
High Courts During Zullah Years 264
Important Cases Decided by the Zullah Court 271
Other Important Cases Decided by the Zullah Court 274
Contempt of Court Committed by General Mirza Aslam Beg 285
Muhammad Afzal Zullah: The Man and the Judge 286
11. ACTIVIST COURT OF NASIM HASAN SHAH (1993â1994) 291
Dissolution of the National Assembly 292
Order of Dissolution 292
Order of Dissolution Challenged 293
Constitutional Duel Over Punjab 297
Dissolution of the Provincial Assembly of N WFP, 1993 300
Other Important Cases Decided by the Nasim Court 301
Composition of the Supreme Court Under Nasim 303
Shafiur Rahman Retires 303
The High Courts During this Period 304
Nasim Hasan Shah: The Man and the Judge 305
12. A HOUSE DIVIDED AGAINST ITSELF: THE JUDICIARY UNDER SAJJAD ALI SHAH (1994â1997) 309
Saad Saood Jan: A Victim of Judicial Intrigues 309
Benazirâs Attitude Towards the Judiciary 310
Sajjad Ali Shah Appointed Chief Justice of Pakistan 312
Sabir Shah Case 314
Sajjad Ali Shah Takes O ver as Chief Justice 317
Public Hangings Banned 321
Implementation of Decision to Separate the Judiciary from the Executive 321
The Local Bodies Case 322
Wattoo Government Sacked: Lahore High Court Verdict 324
PPPâs Rough Handling of Superior Courts 327
The Judgesâ Judgement 328
Presidentâs Reference N o.
2 337
Dissolution of the National Assembly Challenged 340
Eighth Amendment Held Valid: Mahmood Achakzaiâs Case 347
Confrontation of Sajjad with Nawaz Sharif 350
Sajjadâs Deteriorating Relations with his Colleagues 352
Sajjadâs Confrontation with the Prime Minister and the Parliament 354
Fall of Sajjad Ali Shah 355
Storming of the Supreme Court 358
A Divided Judiciary 360
Asad Ali Case 361
Composition of the Supreme Court Under Sajjad 364
Composition of High Courts Under Sajjad 367
Sajjad Ali Shah: The Man and the Judge 372
13. THE JUDICIARY RECOVERS PARTIALLY: THE AJMAL COURT (1997â1999) 382
Contempt of Court Cases Before the Supreme Court 383
Petition Against the Thirteenth Amendment Dismissed 386
Supreme Courtâs Verdict on the Fourteenth Amendment 386
The Supreme Court Strikes Down Anti-Terrorist Law 388
Nuclear Tests: Declaration of Emergency 390
Supreme Court Declares Military Courts Unconstitutional 393
Storming of the Supreme Court Case Decided 395
Service Quota Case 396
Lahore High Court Upholds the Ehtesab Act 397
Rafiq Tarar Case 398
Hitachi Case 400
Zakat Declaration Case 403
Composition of the Supreme Court Under Ajmal 404
Composition of the High Courts Under Ajmal 404
Ajmal Mian: The Man and the Judge 406
14. THE DEPOSED CHIEF JUSTICE: SAEEDUZZAMAN SIDDIQUI (1999â2000) 412
Important Cases Decided by the Siddiqui Court 414
Saeeduzzaman Siddiqui: The Man and the Judge 419
15. THE USURPER CHIEF JUSTICE: IRSHAD HASSAN KHAN (2000â2002) 421
Supreme Court Upholds Military Takeover 422
Judgement in NAB Ordinance 426
Irshad Appointed Chief Election Commissioner 429
Composition of the Supreme Court Under Irshad 432
Composition of the High Courts Under Irshad 434
Irshad Hassan Khan: The Man and the Judge 436
16. JUDICIARY SUBMERGED IN CORRUPTION: SHEIKH RIAZ AHMAD (2002â2003) 442
Muhammad Bashir Jehangiri 442
Riaz Takes Over as Chief Justice 443
Legal Framework O rder 2002 Challenged 445
Confrontation with the Bar 446
Struggle of the Bar Against LFO 448
Composition of the Supreme Court Under Riaz 450
Composition of High Courts Under Riaz 450
Riaz Ahmad: The Man and the Judge 453
17. FACE OF A SPINELESS JUDICIARY: NAZIM HUSSAIN SIDDIQUI (2003â2005) 457
Musharraf and the Issue of the Uniform 457
Seventeenth Amendment Upheld by the Supreme Court 458
Other Important Cases Decided by the Nazim Court 463
Composition of the Supreme Court Under Nazim 466
Composition of the High Courts Under Nazim 467
Nazim Hussain Siddiqui: The Man and the Judge 469
18. A DIFFICULT BALANCING ACT: IFTIKHAR MUHAMMAD CHAUDHRY (JUNE 2005âMARCH 2007) 471
Hisba Bill and Reference to the Supreme Court 472
Local Government Elections 2005 474
The Steel Mills Case 475
Case of Civil Servants in Relation to Section 2-A of the Service 477
Tribunals Act
Composition of the Supreme Court Under Iftikhar 481
Composition of the High Courts Under Iftikhar 482
19. IFTIKHAR MUHAMMAD CHAUDHRY: SUSPENDED, SACKED, AND RESTORED: THE LAWYERSâ MOVEMENT (9 MARCH 2007 TO 24 MARCH 2009) 486
The Suspension of the Chief Justice: Events of 9 March 2007 486
Treatment of the Chief Justice After Leaving Army House 488
Supreme Judicial Council Proceedings 490
Proceedings Before the Supreme Court 492
Chief Justice Restored 493
Order of the Court 494
Reaction to these Events by the Public and the Legal Profession 495
Protests 496
Media 498
Judicial Orders and Proceedings Flouted 499
Dual Office Case 500
Wajihuddinâs Case 500
Musharraf âs Election 502
Musharraf âs Coup Against the Judiciary: Emergency and PCO 502
Judges O athed Out 504
Restraining Order of 3 November 2007 505
Crackdown on Lawyers and the Lawyersâ Movement 507
Musharraf âs Emergency Rule 508
Musharraf Quits as COAS and Emergency Lifted 509
Law of Legal Practitioners Amended 510
PCO Supreme Court Upholds PCO 511
Restoration of Judiciary and the Murree Declaration 513
First Long March 516
PPP Reneges Again on Restoration of Judiciary 518
The Dogar Court 521
Ordeal of the High Courts 522
Second Long March and Restoration 523
CONCLUSION 538
Struggle for Survival 538
Judicial Activism and Restraint 541
Instability of the State and the Judiciary 543
Decline in Competence and Integrity of Judges 543
Rat Race Amongst Judges 545
Attitude and Inclination of Judges 547
Neglect of Fundamental Rights 547
Lack of Judicial Philosophy 548
Employment after Retirement 549
Profile of Judiciary 550
Index 551
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