ISLAMABAD – The Supreme Court on Monday sought the government’s stance on the legal status of PCO judges after non validation of November 3, 2007 actions by parliament.
A seven-member special bench of Chief Justice Iftikhar Muhammad Chaudhry, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Mian Saqib Nisar, Justice Sarmad Jalal Osmany and Justice Amir Hani Muslim was hearing intra-court appeals of dysfunctional and retired judges of the superior courts, seeking overturning of the SC’s February 2 decision of charging them with contempt for taking oath under the PCO in defiance of the November 3, 2007, restraining order.
During hearing, the chief justice observed that the oath of PCO judges, as well as other November 3, 2007, actions were not indemnified by parliament, while the 1999 actions including judges’ oath were given validation under the 17th Amendment. “Prima facie, the judges who took oath under PCO are no more judges and in the 18th constitutional amendment, parliament also did not give any protection to the actions taken on November 3, 2007”, the chief justice observed.
“We are grateful to the incumbent parliament which has not endorsed even a single word of November 3, 2007, actions,” the chief justice remarked. He said that whatever steps taken by the dictator on that date were unconstitutional, thus the judges who took oath between November 3 and December 15, 2007, were no longer part of the judiciary as they did not take fresh oath after the restoration of the constitution.
In his arguments, SM Zafar, lawyer for PCO judge Justice Sayed Zahid Hussain, said the PCO judges were declared judges in July 31, 2009 judgment. He said he was unable to figure out why the court was showing urgency to end the case and why the judges were sitting with a “determined mind”. He said until a detail judgment of the four-member bench that dismissed the appeals of PCO judges, contempt proceedings should be stopped.
The chief justice said PCO judges did not have any legitimacy to claim themselves as judges, adding that the judgment in Tikka Iqbal Muhammad Khan case, validating the November 3 emergency given by former de-facto chief justice, was set aside in July 31, 2009 verdict. He said prima facie the perks, salary and benefits for PCO judges of either group (apologetic and unrepentant), were dubious, adding that SC Supreme Court in its July 31 verdict had blocked deviation from the constitution for all times to come.
Zafar said parliament also helped the judiciary, but the chief justice remarked that the judges had given sacrifices for it as well. Zafar said the judges could not be tried under Article 204, as a judge was different from a common person. Justice Mian Saqib Nisar said when PCO judges were not judges according to the July 31, 2009 verdict, it was irrelevant to argue that they could not be tried under Article 204.
The court directed the Attorney General Maulvi Anwarul Haq to get full instruction from the federal government about its stance over PCO judges and adjourned proceedings until March 3.
