The Nasla Towers and Monal Restaurant Tragedies: Misuse of Article 184 (3) and the Federal Constitutional Court

By Muhammad Imran, Staff Member, SAHSOL-LUMS and Musa Haroon, Law Graduate, SAHSOL-LUMS

The constitutional evolution of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, represents one of the most contentious chapters in Pakistan’s constitutional history. Originally conceived as an extraordinary jurisdiction enabling the Supreme Court to protect fundamental rights in matters of public importance, Article 184(3) gradually evolved into an expansive judicial instrument that significantly altered the constitutional balance among the three organs of the State. The Twenty-Sixth and Twenty-Seventh Constitutional Amendments, enacted in 2024 and 2025, respectively, should therefore be understood not merely as institutional reforms but as a constitutional response to decades of judicial overreach and the absence of meaningful procedural restraints on the exercise of suo motu jurisdiction.

In its formative years, the Supreme Court exercised Article 184(3) with commendable judicial restraint. During the 1990s, the Court generally adhered to the constitutional prerequisites of “public importance” and the “enforcement of fundamental rights,” recognizing that extraordinary jurisdiction should remain an exceptional remedy rather than an alternative forum for ordinary governance disputes. This restrained jurisprudence reflected a proper appreciation of the doctrine of separation of powers and preserved the institutional legitimacy of the judiciary.

The constitutional trajectory changed dramatically during the tenure of Chief Justice Iftikhar Muhammad Chaudhry. Following his restoration in 2009, the Supreme Court embraced an activist conception of judicial power that substantially expanded the scope of Article 184(3). While many of the Court’s interventions were justified in the name of accountability, transparency, and constitutional supremacy, the absence of clear jurisdictional standards transformed suo motu jurisdiction into an unpredictable and highly personalized judicial power. The concentration of such extraordinary authority in the office of a single person, i.e., the Chief Justice, weakened institutional decision-making and blurred the constitutional distinction between adjudication and governance.

The judgments concerning the Reko Diq mining project and the Rental Power Projects exemplify the long-term institutional and economic consequences of excessive judicial intervention. Although these decisions were ostensibly motivated by concerns regarding corruption and legality, subsequent developments revealed their profound economic costs. The cancellation of major commercial projects adversely affected Pakistan’s investment climate, generated prolonged international arbitration, and exposed the State to substantial financial liabilities. These cases illustrate that constitutional adjudication cannot be divorced from economic governance and that judicial review must remain sensitive to its broader institutional consequences.

Judicial activism reached its climax during the tenure of Chief Justice Mian Saqib Nisar. His frequent reliance on Article 184(3) extended judicial intervention into domains traditionally reserved for the executive, including public administration, healthcare, education, infrastructure, environmental regulation, and political affairs. Although several interventions received public approval for addressing governmental inefficiency, constitutional adjudication increasingly appeared to substitute judicial discretion for executive policy-making. Such an approach risks undermining democratic accountability by allowing unelected judges to perform functions constitutionally assigned to politically accountable institutions.

Equally concerning was the absence of procedural safeguards in the exercise of suo motu jurisdiction. Since proceedings could be initiated solely at the discretion of the Chief Justice, litigants lacked any meaningful opportunity to challenge the invocation of jurisdiction, while bench composition remained largely immune from institutional scrutiny. This concentration of authority generated persistent concerns regarding transparency, consistency, and the perception of selective judicial intervention. Consequently, criticism of Article 184(3) was directed not merely at the existence of extraordinary jurisdiction but at the absence of constitutional checks governing its exercise.

The enactment of the Supreme Court (Practice and Procedure) Act represented an important attempt to institutionalize judicial decision-making by replacing unilateral discretion with collective responsibility. By entrusting bench formation and suo motu initiation to a committee of the three senior-most judges, Parliament sought to reduce the possibility of personalized judicial governance while enhancing procedural legitimacy. Although the legislation itself became the subject of constitutional controversy, its underlying objective reflected internationally recognized principles of judicial independence, transparency, and institutional accountability.

The subsequent establishment of Constitutional Benches under the Twenty-Sixth Constitutional Amendment and the creation of the Federal Constitutional Court under the Twenty-Seventh Constitutional Amendment constitute perhaps the most significant restructuring of Pakistan’s constitutional judiciary since the adoption of the 1973 Constitution. These reforms acknowledge an important constitutional reality: extraordinary constitutional jurisdiction should not depend upon the individual philosophy of a single Chief Justice but should instead be exercised by a specialized constitutional forum operating through collective judicial deliberation.

The Federal Constitutional Court’s decision to set aside the judgments relating to Nasla Tower and Monal Restaurant is particularly significant from a constitutional perspective. These decisions implicitly recognize that constitutional adjudication must be guided by the principles of proportionality, procedural fairness, legitimate expectations, and protection of vested rights. By overturning judgments that had caused substantial financial losses and social hardship, the Court demonstrated a willingness to reassess the limits of judicial intervention where constitutional remedies produce disproportionate consequences. Although reasonable minds may differ regarding the merits of the original decisions, the Federal Constitutional Court’s approach reflects a more balanced understanding of constitutional adjudication that seeks to reconcile legality with fairness and practical justice.

Nevertheless, the constitutional reforms should not be viewed as a complete solution to the challenges associated with judicial review. Merely transferring jurisdiction from the Supreme Court to the Federal Constitutional Court will not eliminate the risk of judicial overreach unless clear constitutional standards govern the exercise of extraordinary jurisdiction. Institutional redesign cannot substitute for judicial self-restraint. The success of the new constitutional framework will ultimately depend upon whether the Federal Constitutional Court consistently applies objective jurisdictional criteria, respects the constitutional allocation of governmental powers, and avoids transforming constitutional adjudication into judicial administration.

Ultimately, the constitutional history of Article 184(3) demonstrates that the legitimacy of judicial review depends not upon the breadth of judicial power but upon its disciplined exercise. Courts undoubtedly serve as guardians of the Constitution and protectors of fundamental rights; however, constitutional supremacy is preserved not by judicial supremacy but by faithful adherence to constitutional limitations. The Twenty-Sixth and Twenty-Seventh Constitutional Amendments therefore represent an important attempt to restore the constitutional equilibrium between judicial independence, democratic governance, and the rule of law. Whether these reforms achieve their intended objectives will depend less upon constitutional text than upon the institutional culture and judicial philosophy that develop within the newly established Federal Constitutional Court.