ISLAMABAD: A senior lawyer argued before the Supreme Court on Monday that it had no jurisdiction to conduct contempt proceedings against judges of superior courts, as only the Supreme Judicial Council (SJC) was the appropriate forum to initiate such proceedings under Article 209 of the constitution.
A five-member larger bench of the Supreme Court consisting of Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S Khawaja, Justice Khilji Arif Hussain and Justice Tariq Parvez was hearing review petitions of PCO judges filed against the contempt notices served to them for taking oath under the Provisional Constitutional Order (PCO) despite a restraining order by the apex court.
Waseem Sajjad, lawyer for Justice Khurshid Anwar Bhinder, also asked the court to show patience and close its contempt proceedings against the judges of the superior courts. He said there was no example across the world wherein contempt of court proceedings were initiated against sitting judges of superior courts.
He said the higher judiciary could not conduct contempt proceeding against judges, as only the SJC was the appropriate forum to initiate proceedings against the judges for misconduct under Article 209 of the constitution. Sajjad said his client was appointed a judge on November 14, 2007, while the seven-member bench’s November 3, 2007 restrain order was only for sitting judges.
He contended that the apex court’s November 6, 2007 verdict had declared the restrain order as null and void. He also requested the court to show judicial restrain in the case as it could not initiate contempt proceeding against sitting judges.
Besides, he said when the main petition of Justice (r) Wajihuddin got dismissed on November 19, 2008, the miscellaneous application was merged with the final order and hence it was no longer in existence.
He said November 3 restraining order was directed to specific functionaries – the government of Pakistan, then president, then prime minister, former army chief, corps commanders and sitting judges of the superior court of the time.
“My client has no means or authority to judge or go beyond the November 6 decision of annulling the restraining order or to think that everything in future will be held ultra vires. Moreover Article 204 or the contempt of court law does not envisage proceedings against superior court judges,” Sajjad argued. During the hearing, Justice Sair Ali observed that they had high respect for their colleagues, however, history had taken them to a point to hear such a case.
Raza Kazim, lawyer for Justice Hamid Ali Shah, submitted that under Judicial Official Protection Act of 1850, all the judges of the apex court enjoyed immunity from court proceedings. He also argued that the SJC was the right forum to initiate proceedings against judges for misconduct under Article 209 of the constitution.
Dr Basit, lawyer for other PCO judges, argued that the court could not conduct contempt proceedings until a decision on the intra-court appeal pending before the court. However, the court rejected his plea. The proceedings were adjourned until today (Tuesday).
