Judicial Review, Higher Courts and Major Cases

The constitutional debates lesson examined the legislative changes to Pakistan's constitution. This lesson examines the judicial changes — how the Supreme Court of Pakistan has interpreted the constitution, what doctrines it has developed, and the major cases that have shaped political life.

Judicial review under the Constitution

The Constitution of Pakistan provides for judicial review through three principal articles:

These articles together establish the architecture within which the higher judiciary has, over the decades, constructed an active doctrine of constitutional supervision.

The doctrine of basic structure

A central doctrinal question in Pakistani constitutional law has been whether the Constitution has a basic structure that even Parliament cannot amend. Three positions have been articulated:

Position 1 — No basic structure doctrine

The earlier orthodox view, drawing on the limited language of Article 239 (which provides that any provision of the Constitution can be amended by a two-thirds majority of both Houses), held that Parliament's amendment power is unlimited.

Position 2 — Implicit basic structure

Beginning in the 1970s, certain Supreme Court judgments suggested that some core constitutional features — federalism, parliamentary system, fundamental rights — were beyond amendment. This position drew on the Indian Supreme Court's Kesavananda Bharati doctrine.

Position 3 — The 21st Amendment case (2015)

In the District Bar Association Rawalpindi v. Federation (2015), the Supreme Court considered the 21st Amendment establishing military courts. The judgment did not formally adopt the basic-structure doctrine but acknowledged that certain features (parliamentary form of government, federalism, independence of judiciary) constitute "salient features" that warrant heightened scrutiny when amended. The judgment upheld the 21st Amendment by a majority while affirming the principle of judicial review of constitutional amendments.

Major cases that have shaped political life

The Supreme Court has, across decades, decided cases that have shaped the political and constitutional environment.

The doctrine of necessity cases

Maulvi Tamizuddin Khan (1955)

The Federal Court (predecessor to Supreme Court) upheld Governor-General Ghulam Mohammad's dismissal of the Constituent Assembly. The judgment laid the foundation for a series of "doctrine of necessity" rulings that legitimised executive overreach.

Dosso v. State (1958)

Justice Munir's ruling validated General Ayub Khan's coup, applying Hans Kelsen's doctrine of "successful revolution" — the idea that a successful coup creates a new legal order to be recognised by courts. This judgment cast a long shadow over Pakistan's constitutional life.

Asma Jilani v. Government of Punjab (1972)

The Supreme Court reversed the Dosso doctrine, declaring General Yahya Khan's regime usurpation. The judgment was a significant restoration of constitutional doctrine.

Begum Nusrat Bhutto v. Chief of Army Staff (1977)

The Supreme Court legitimised General Zia ul-Haq's coup against Z.A. Bhutto's government, citing necessity and circumstances. The judgment again invoked the doctrine of necessity.

Zafar Ali Shah v. Pervez Musharraf (2000)

The Supreme Court legitimised General Musharraf's 1999 coup, allowing him three years to hold elections and amend the Constitution. The judgment continued the pattern of judicial accommodation of military rule.

Sindh High Court Bar Association v. Federation (2009)

After Musharraf's 2007 emergency and the dismissal of the senior judiciary, the Supreme Court (post-restoration of Chief Justice Iftikhar Chaudhry) declared the 2007 emergency unconstitutional and the actions taken under it void. This was a notable break with the doctrine-of-necessity tradition.

The Iftikhar Chaudhry era — judicial activism (2007–2013)

The post-2007 lawyers' movement that restored Chief Justice Iftikhar Chaudhry produced a period of unprecedented judicial activism. Notable cases included:

• Steel Mills Privatisation case (2006) — quashed the privatisation of Pakistan Steel Mills.
• Missing persons cases — repeated suo motu proceedings on disappearances by intelligence agencies.
• NRO case (2009) — struck down the National Reconciliation Ordinance and quashed legal protections it had provided.
• Memogate case (2011-12) — examination of the alleged memo to US officials seeking American intervention against the Pakistani military.
• Contempt of court proceedings against PM Yousaf Raza Gilani (2012) — eventual disqualification of a sitting Prime Minister.

The activism era was praised by some as a check on executive misconduct and criticised by others as judicial overreach into political and policy questions.

Disqualifications of Prime Ministers

The Supreme Court has disqualified two sitting Prime Ministers in recent decades:

Yousaf Raza Gilani (2012)

Held in contempt of court for refusing to write to Swiss authorities seeking the reopening of money-laundering cases against then-President Asif Ali Zardari. The ruling triggered Gilani's disqualification.

Nawaz Sharif (2017) — Panama Papers case

The Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif case (2017) led to Sharif's disqualification on grounds of his failure to disclose certain assets in his nomination papers (an unreceived FZE salary). The disqualification was made under Article 62(1)(f) — requiring a member of Parliament to be "Sadiq" (truthful) and "Ameen" (honest).

The Article 62(1)(f) jurisprudence has subsequently been a recurring source of debate, with the question of whether disqualification under this article is permanent or limited in time being addressed in later cases.

Imran Khan related cases

The 2022–2024 period has seen multiple high-profile cases involving former Prime Minister Imran Khan and the PTI:

• Toshakhana case — Khan's conviction in August 2023 (later set aside on appeal in cases) regarding the disclosure and disposal of state gifts.
• Cypher case — proceedings under the Official Secrets Act regarding an alleged diplomatic cypher.
• The 9 May 2023 cases — civil and military proceedings against PTI workers and leaders following violence at military installations after Khan's arrest.
• Reserved seats case (2024) — the Supreme Court allocation of reserved parliamentary seats among parties, with major implications for the post-2024 election government's parliamentary arithmetic.

Recurring debates about the higher courts

Three debates recur:

1. Judicial activism vs judicial restraint

Proponents of activism argue that an active judiciary is essential in a context where other institutions (Parliament, executive, regulators) are weak or compromised. The Supreme Court fills the institutional vacuum.

Proponents of restraint argue that an over-active judiciary intrudes into legislative and executive functions, undermines the separation of powers, and creates legal uncertainty. The judiciary should adjudicate disputes brought before it, not initiate policy through suo motu proceedings.

2. The Article 184(3) jurisdiction

The original-jurisdiction power under Article 184(3) has been at the centre of activism debates. The post-2018 Supreme Court has periodically attempted to discipline its use through procedural reforms. The 2023 Practice and Procedure Act sought to constrain the Chief Justice's discretionary power to constitute benches and frame proceedings under Article 184(3).

3. The political question doctrine

Pakistani jurisprudence has not consistently developed a political-question doctrine that would keep certain matters out of judicial review. As a result, recurrent political disputes — from intra-party defections to election results — have been litigated in the Supreme Court, generating debate about the proper boundaries of judicial review.

Specific recent debates

The 2022 vote-of-no-confidence cases

The Supreme Court's review of National Assembly proceedings in April 2022 — both the Deputy Speaker's ruling rejecting the no-confidence motion and the subsequent restoration of the Assembly's right to vote — was a significant exercise of judicial intervention in the political process.

The Punjab CM case (2022)

The Supreme Court's ruling on the casting of votes by PTI dissident MPAs in the Chief Minister Punjab election produced a 3-2 split decision with significant legal-academic critique.

The Reserved Seats case (2024)

The Supreme Court's July 2024 ruling allocating reserved seats — declaring the Sunni Ittehad Council ineligible while allowing PTI to claim those seats — substantially altered the post-2024 election parliamentary arithmetic and has been politically contested.

What CSS questions on this topic typically demand

Three exam shapes:

1. Doctrinal — "Discuss the doctrine of judicial review in Pakistan."
2. Case-based — "Comment on the role of the Supreme Court in Pakistan's political evolution since 2007."
3. Critical — "Judicial activism in Pakistan has produced both consolidation of constitutional values and constitutional instability. Discuss."

A strong answer requires:

• Familiarity with named cases and their dates.
• The doctrines (necessity, basic structure, judicial review) and how they have evolved.
• An understanding of the political context within which judgments were rendered.
• A defensible position on the activism-vs-restraint debate.

What you take from this topic

Pakistan's higher judiciary has played a far larger role in political and constitutional life than the formal text of the Constitution might suggest. Its decisions — necessity rulings, disqualifications, electoral interventions — have shaped political outcomes in every era. Whether this represents the consolidation of constitutional values or excessive judicial intrusion into political space remains the central debate. The next topic in your Pakistan Affairs preparation continues with the social dimension of Pakistan's contemporary condition.