ISLAMABAD – Admitting that his oath under the 1999 Provisional Constitutional Order (PCO) had been condoned by parliament in 2004, Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry said on Monday the court could not allow the judges, who had taken oath under the PCO issued on November 3, 2007, to hold offices as it would become a precedence and “law of necessity”.
The chief justice said this while heading a six-member special bench which was hearing intra-court appeals of the PCO judges against the court’s verdict of February 2 wherein it was ruled that contempt charge be framed against them for taking oath in violation of the SC’s November 3, 2007 restraining order.
The court also reserved its verdict on the intra-court appeals of the superior courts’ judges, who had taken oath under PCO in violation of the apex court’s Nov 3, 20007 restraining order. The verdict was reserved after the counsels for the applicants completed their arguments.
During the hearing, the chief justice expressed dissatisfaction over the federation’s reply submitted by Attorney General Maulvi Anwarul Haq. The court noted that the question it had raised as to what was the status of these PCO judges when under the 18th Amendment, parliament did not validate the actions taken on November 3, remained unanswered. On behalf of the federation, the attorney general submitted that the judges could only be removed under Article 209 of the constitution.
He said parliament’s special committee on constitutional reforms had taken notice of the July 31, 2009 judgement of the SC passed in Sindh High Court Bar Association case, in which parliament had been applauded for not validating the illegal actions of Nov 3, 2007. The AG stated that the SC had divided the PCO judges into two categories, saying, “First those who were judges of the SC or any of the high courts on November 3, 2007 and the second, those who were notified as judges of the Supreme Court or high courts between November 4, 2007 and March 23, 2009 on this basis of ‘consultation’ with Justice Abdul Hameed Dogar.”
“The notifications were issued in the matter of second category of judges in terms thereof, while references were prepared and filed under Article 209 of the constitution regarding the first category of the judges,” the AG said. Raza Kazim, counsel for Justice Hamid Ali Shah, said the government had endorsed his stance in its reply that action against the judges could be taken only under Article 209.
He said the court had to see whether the PCO judges violated the letter or the spirit of the November 3, 2007 order. Justice Sarmad Jalal Osmany observed that the judges who had taken oath on November 3, 2007 had violated the letter and those who had taken oath afterwards had violated the spirit of November 3 order.
The counsel contended that for the first time in the country’s judicial history, judges of the superior judiciary served contempt notices on their colleagues. He said his client had not wilfully violated the order, adding he had taken oath under misperception. “It is my humble submission that the court should hear the case with open mind”, he pleaded.
The chief justice observed that, “If we bypass this act then the adventurer would be encouraged and in future some other adventurer would come and put the constitution in abeyance.” He said parliament had validated to 8th and 17th Amendments. “If leniency was shown now then it would mean to validate all the acts of Pervez Musharraf”, the chief justice said.
He observed that ignoring the judges having taken oath under PCO would mean returning back to the doctrine of necessity. He said many of the bench members, including himself, had taken oath under PCO but parliament had ratified it. “If the PCO oath was not taken seriously, then God forbid, the situation might again arise when our judge would have to take such oath,” the chief justice remarked, adding that we have to save the constitution and democratic system.
The judges sitting here today have given tremendous sacrifices; they were kept in detention, the chief justice said and added: “We should not compromise on the situation.” The court reserved its verdict.
