The Federal Constitutional Court (FCC) of Pakistan established through the 27th Amendment to the Constitution of Pakistan (the Constitution) prompted many of my friends of Pakistani origin to ask about what my father would think of FCC. Their query led me to the times my father practiced before the Supreme Court of Pakistan (SCP) from 1952 to 2016.
He used to narrate to me incidents, encounters and experiences with great reverence and respect for the highest judicial institution and its judges.
He saw SCP growing into a giant that once created awe and dread in the hearts of the mighty. From unwinding Court drama in the Maulvi Tamizuddin’s case (1955) to the bizarre and biased hearings in the Zulfikar Ali Bhutto’s death sentence and the Pervez Musharraf’s treason case (2014) there were many twists, turns and tragedies in the epic tales of the rise and fall of the SCP.
He remained an advisor to Generals Zia-ul-Haq and Pervaiz Musharraf but ensured that the dignity of SCP was not compromised, and its jurisdiction was not eroded.
The passage of the 26th Amendment to the Constitution created a separate mechanism for constitutional cases, two former Attorneys General of Pakistan who had long association with my father reached out to me asking if I had any drafts or documents regarding a mechanism for handling constitutional cases written by my father.
In going through his extensive papers, I did not find anything on the subject. He certainly shared his thoughts on the subject of a constitutional court and constitutional issues which I narrate in the latter part.
The story my of father’s legal profession began well before partition in 1947 but it reached its epitome when he was enrolled as an Advocate of the Supreme Court of Pakistan on 9th January 1952 (not yet 29 years old).
He signed the roll as Senior Advocate of the Supreme Court on 8th October 1959 (just a little over 36 years old). He was almost certainly the youngest advocate to have obtained that distinction (and perhaps remains so to this day).
In October of 2002, the Bar Council of the Supreme Court celebrated with great fanfare the fiftieth anniversary of his becoming an Advocate of the SCP. He was the first member of the legal fraternity to reach this milestone. At the time of his demise, he was most probably the senior most lawyer still practicing in Pakistan, with a tenure of arguing cases at Supreme Court spanning almost seventy years. His almost uninterrupted tenure was the longest in the history of Pakistan.
During his long career he appeared in more cases before SCP than any other lawyer. A former Attorney General wrote: “his submissions are a treat for a constitutional lawyer…. Every important constitutional case in the 1960s reflects his depth of knowledge and legal acumen”.
Even the judges of the Supreme Court were admirers. Cornelius (former Chief Justice of Pakistan), one of the most respected jurists in Pakistan’s history, wrote the following note for my father in his book (Law and Judiciary in Pakistan): “in acknowledgment of his outstanding qualities as a lawyer and constitutionalist, and in grateful memory of long association in the work of the Supreme Court”.
While his detractors often point to his support for the military dictators (the validity of General Zia’s and General Musharraf’s takeovers) they conveniently forget that when military decides to take over, the only option left is to save the legal order as much as possible. So that the doors of courts remain open to the common man.
He advised not only military dictators but even the mainstream political leaders. Among others, Ayub Khuhro, Benazir Bhutto, Nawaz Sharif, Aftab Sherpao and Akbar Khan used to seek his advice and engaged him when confronted with legal difficulties.
In many detailed discussions with my father, the work he cherished most was when he appeared as amicus curiae before the SC. It usually happened in the most important cases in Pakistan’s judicial history and rather than presenting a client’s view he was presenting his own views. His deft arguments have created a rich set of precedents of SC spanning a spectrum of legal topics, with the following among the most cited.
In the important constitutional case of the Al Jihad Trust Case/First Judges case (PLD 1996 SC 324), SCP ignored all other arguments and went along with my father’s arguments. His role as amicus curiae in the Asma Jillani case (1972) is well known (one of the two most important cases advancing constitutional rights at the Supreme Court of Pakistan). Asma Jehangir (Jillani) had this to say about my father: “He’s a very skillful lawyer and we have no better authority on constitutional law”; this was the highest praise from someone who had worked with all of Pakistan’s legal giants.
With FCC now at the apex, SCP stands confined to just an appellate court in civil, family and criminal matters. The treasure of precedents more than seventy-five years stands tarnished and is no longer relevant in deciding constitutional matters. When the current Chief Justice of America (John Roberts) was being questioned during his confirmation hearings at the US Senate he had described respect for precedence as a “bedrock of our legal system”. It is indeed a travesty if all these precedents are confined to the dust-bins of history.
Makhdoom Ali Khan (former Attorney General for Pakistan) wrote so movingly the following in his article “Supreme no more” (https: //www.dawn.com/news/1954031/comment-supreme-no-more): “It is an obituary of the Supreme Court (SC) and the high courts that we once knew.”
He went on to say, “Do not be surprised if you soon witness a purge of ‘undesirable’ SC judges. Anwar Mansoor Khan (another former Attorney General) wrote in his article “Judicial disaster (https:/ /www.dawn.com/news/2000090/judicial-disaster”): The 26th and 27th Amendments were aimed at making the judiciary subservient to the executive” and “Those judges who do not cede to governmental pressure are removed from their courts and sent to others where they would not be able to, in any meaningful way, protect the people from the hawkish eye of the government.” My father had presciently predicted exactly this in a conversation he had with one of Pakistan’s senior most lawyers shortly before his death. The gist being: “after my death you will see new laws being made with intent of wholesale purging of judges”.
The idea of an FCC and the mechanism of selecting its judges comes from the Charter of Democracy (CoD) of 2006. The CoD states:
- (a) The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise the following:
i. The chairman shall be a chief justice, who has never previously taken oath under the PCO.
- An FCC will be set up to resolve constitutional issues, giving equal representation to each of the federating units, whose members may be judges or persons qualified to be judges of the Supreme Court, constituted for a six-year period. The Supreme and High Courts will hear regular civil and criminal cases. The appointment of judges shall be made in the same manner as for judges of higher judiciary.
In 2006 General Musharraf was at the peak of his power and all major decisions of SCP had been favourable to his regime. Both PPP and PML-N knew that several legal hurdles were going to come their way in the upcoming elections that could adversely affect their chances.
Further, they were acutely aware of the limitations of their own legal teams and knew that it was no match to General Musharraf’s legal team headed by my father and ably supported by a team of very capable lawyers led by the then Attorney General of Pakistan. To change the playing field, they proposed the FCC that would not include any of the judges of then Supreme Court, since most of them had taken oath under General Musharraf’s PCO.
After the signing of the CoD, my father had a detailed discussion about the FCC with a key legal advisor to one of the political parties. My father told him that while a permanent mechanism had to be established to handle constitutional cases, having a separate Constitutional Court was not the best way of doing it. When the legal advisor mentioned the South African Constitutional Court, my father responded that the situation in Pakistan was very different, we had a rich history of jurisprudence at the Supreme Court spanning almost 70 years whereas South Africa had just come out of an apartheid system of government.
On 31st July 2009 the SCP delivered a judgement, stating that the appointments of all justices between 3 November 2007 and 24 March 2008 were deemed unconstitutional. As a result of which, about 76 judges, most of them very able, were removed from the superior judiciary (Supreme Court and various High Courts). With the removal of these judges and riding high on his popularity, the then CJP was able to “pack” the courts with judges of his choosing. Most of the judges appointed were known more for their support of restoring him and not for their legal acumen.
The decisions and cases taken up (especially suo moto) by the superior judiciary of that time can most charitably be described as unproductive judicial overreach. One of the most egregious examples was a high-profile case that violated one of the central tenets of the rule of law, an act that was not illegal at the time it was committed, cannot be termed illegal retroactively with a new law making it illegal.
Since 2022 the SCP had come up with some very novel judgments that essentially rewrite the constitution, and many are contradictory to each other. This made some commentators to remark, “the judges in Pakistan are now so independent that they are even independent of the law!” It is pertinent to note that after the passage of the 27th Amendment almost all the judges involved in these decisions are no longer part of the superior judiciary.
Before we go into what my father had envisaged as a solution to permanently handle constitutional matters in Pakistan, I want to share some important aspects of his judicial outlook.
The first and foremost is that he revered the SCP as an institution and would never countenance anything that curtailed its dignity. He had invested nearly 70 years of his life to create jurisprudence for future generations to use as precedents.
Secondly, for the superior judiciary he was a great believer that seniority should be the biggest factor in promotion to and within the SCP. My father was aware of the criticism levelled by some politicians that in many cases at the SCP, judges from a particular High Court acted in unison. He would almost certainly have devised a mechanism to avoid that.
Moreover, in the literally handful of times that the judges ruled against his arguments, I never heard him say anything negative about the judges or their judgments. This was different from the leaders of the Lawyers’ Movement of 2007, who publicly stated that if the SCP does not restore the deposed CJP, they would burn the SCP. That hardly furthers the rule of law; it is more akin to the rule the jungle!
Two very senior lawyers who were close to my father told me that my father was definitely not for creating a parallel judicial system to the SCP by establishing an FCC. What he envisioned was that the SCP having a permanent bench (not benches) to handle constitutional matters. Knowing how he used to think, I would posit he would have the CJP head the bench and seniority within the SCP the main criteria with equal representation from all the High Courts.
Unsurprisingly, conceptually what was proposed in Article 191A of the 26th Amendment (in October 2024) is similar to what my father’s draft may have contained more than a decade ago. However, there are a few significant differences between the two and these are what caused Article 191A to be so controversial in the legal fraternity.
Now that face of the judiciary is very different from what it was before the introduction of the 26th amendment, the government, the existing judiciary and leading jurists can cooperate for the greater good and create a system whereby the SCP is restored to its to its former glory. This will reinforce the trust of the public in the superior judiciary.
We should pay heed to what the great American jurist Robert Jackson (referring to the Supreme Court of the USA) said: “We are final not because we are infallible, but we are infallible only because we are final”. That is why it is imperative that the SCP must have the final say on all legal matters, whether constitutional, civil or criminal.
Copyright Business Recorder, 2026
The writer lives in Silicon Valley, USA
Comments