Supreme Court of Pakistan - The Supreme Court Under Musharraf

The Supreme Court Under Musharraf

Shortly after General Musharraf overthrew Sharif in the 1999 Pakistani coup d'état, the opposition challenged the legitimacy of the coup and asked the court to rule on its legality. On 12 May 2000 the Court rendered a nuanced verdict.

• In its preamble, the Court
  • rejected the options of "complete surrender" to the regime or total opposition which, in its judgement, would have led to the "closure of the courts". It chose a middle ground (praised by retired US judge John Clifford Wallace) that allowed the Court to maximize its influence.
  • asserted that it had the inherent power to examine the validity of Musharraf's orders, even orders purportedly restraining the Court from questioning his proclamations.
  • called Musharraf's coup an "extra-constitutional action".
• In its judgement, however, the Court
  • accepted the coup on the grounds of
    • the doctrine of state Necessity (a situation having arisen for which "there was no remedy provided in the Constitution", checks and balances such as Article 58(2)(b) having been removed by the Thirteenth Amendment, hence Necessitas facit licitum quod alias non est licitum).
    • the principle of salus populi est suprema lex.
    • the principle "that the government should be by the consent of the governed, whether voters or not" (the court took note of the fact that the takeover was widely welcomed, and little-protested, and hence that the regime had the implied consent of the governed).
  • asserted the right of the Superior Courts to review the orders, proceedings, acts, and legislative measures of the Musharraf regime.
  • termed the situation a "case of constitutional deviation for a transitional period".
  • accepted the government's argument that the electoral rolls were outdated and that fresh elections could not be held without updating the electoral rolls, and that two years were required to do so.
  • gave Musharraf until 12 May 2002 to hold elections.
  • reserved for itself the right to review/re-examine the continuation of Musharraf's emergency powers.

Although the government, before this judgement, had not given a timetable for the restoration of democracy – having argued that it needed an indefinite and possibly prolonged time to reform the country – Musharraf publicly submitted to the Court's judgement. The elections were duly held in October 2002 as ordered and the Constitution was revived. However, Musharraf later decided to retain power and enacted the Seventeenth Amendment in December 2003, largely incorporating the 2002 Legal Framework Order into the Constitution.

Pakistani legal theorists have posited that Pakistan's "grundnorm", the basis for its Constitutional convention and system of laws, continues in effect (and the Supreme Court therefore retains its authority) even when the written constitution is suspended by the imposition of a military dictablanda.