By Sohail Khan
ISLAMABAD: The Supreme Court on Wednesday ruled to frame charges against nine judges of the superior courts who took oath under the Provisional Constitution Order (PCO) and for violating the apex court’s restraining order on November 3, 2007.
Those nine judges against whom the court would frame charges for violating the court’s order of November 3, 2007 are Justice (retd) Iftikhar Hussain Chaudhry, Justice (retd) Abdul Hameed Dogar, dysfunctional judges including Justice Hamid Ali Shah, Justice Hasnat Ahmed Khan, Justice Syed Shabbar Raza Rizvi, Justice Yasmin Abbasey, Justice Jehan Zaib Rahim, Justice Sayed Zahid Hussain and Justice Syed Sajjad Hussain Shah.
A four-member bench of the apex court, headed by Justice Mahmood Akhtar Shahid Siddiqui, announced its verdict on a legal point as to whether it could initiate contempt proceedings against the judges who took oath under the Provisional Constitution Order (PCO), and whether it could issue contempt notices to generals involved in promulgation of the November 3, 2007 emergency in the country in defiance of a seven-member apex court bench’s restraining order.
Earlier, on January 26, 2011, the court had reserved judgment in the case. The court in its judgment announced that it would frame charges against nine judges on February 21, 2011, ruling that the judges, if so desired, can appear on that date either in person or through counsel to enter their plea on the charges being framed against them.
Dr Abdul Basit, counsel for Justice Hasnat Ahmed Khan and Justice Shabbar Raza Rizvi, dysfunctional judges of the superior court, had pleaded before the court to issue notices to the then COAS and President General (retd) Pervez Musharaf and then prime minister Shaukat Aziz because these persons were equally liable for disobeying the order passed by the seven-member bench of the apex court on November 3, 2007.
The court, however, ruled that the proceedings against these persons may continue independently and on their own facts either before this bench or before some other bench as may be determined by the chief justice.
“It has been asserted by learned counsel representing the said applicants/respondents Mr Shabbar Raza Rizvi & Mr Hasnat Ahmad Khan that notices be issued to other persons mentioned in paras (i) and (iii) of the order dated 3.11.2007, including the then COAS and President General Pervez Musharraf and the then Prime Minister Mr Shaukat Aziz, because these persons are equally liable for disobeying the order passed by seven-member Bench of this Court on 3.11.2007,” said the court order.
“We have considered the submissions of learned counsel and have also noted the contents of these applications and prima facie find substance in the same,” the court ruled, adding “We also find that the contempt alleged against these persons is primarily consequent to issuance of the three instruments viz. Proclamation of Emergency, PCO and Oath of Office (Judges) Order, 2007 and thereby launching an assault on the independence of the judiciary.”
The court further ruled that it appears, prima facie, that these instruments were issued prior to the passing of the order dated 3.11.2007 and not in disobedience of the same. Therefore, the case for contempt of court these persons will have to answer is materially different from the charge to be faced by the respondents which arises on account of their disobedience of the order passed by the seven-member bench of this Court on 3.11.2007.
“The proceedings, therefore, against the aforesaid persons may proceed independently and on their own facts, either before this Bench or before some other Bench as may be determined by the Chief Justice of Pakistan. It is, in our opinion, quite unnecessary to link or club the proceedings against the respondents with those which may be taken against the above named persons,” the court order said.
The court also rejected the plea on employing the assistance of the Pakistan Bar Council (PBC) and presidents of the provincial bar associations in contempt proceedings against the PCO judges.
The apex court, in its order, said the proceedings against the judges who took oath under the PCO could go ahead. “In the facts and circumstances of these matters, the Constitution and law does not prohibit proceedings under Article 204 of the Constitution against the respondents even though they may be Judges of the Supreme Court and the High Courts,” the court ruled.
The court held that they are not immune from proceedings under Article 204 and the Contempt of Court Ordinance V, 2003, for committing contempt of this court.
“Having considered the submissions of learned counsel as to the propriety of initiating contempt proceedings against the respondents and being fully conscious of the status of the respondents, we hold that in the circumstances of these matters, propriety requires that proceedings should be taken against the respondents and they, with the exception of Mr Zafar Iqbal Chaudhry and Khurshid Anwar Bhindar, be put to trial in accordance with the aforesaid law,” says the court order.
The court ruled that even though Zafar Iqbal Chaudhry and Khurshid Anwar Bhindar took oath under the PCO on December 14, 2007, since they were not judges of the Lahore High Court whether on November 3, 2007 or at any later point in time, they did not violate the letter of the order dated November 3, 2007 even though they may have violated its spirit.
The court further ruled that in the circumstances, their conduct in taking oath under the PCO and purporting to it as judges subsequent thereto, is deprecated in terms of Section 18(2) of the Contempt of Court Ordinance 2003.“We hold that in the circumstances they shall not be charged to face trial under the said Ordinance,” the court ruled.
The court, while considering the record, facts and circumstances and replies in these matters and after due consideration of the arguments advanced on behalf of respondents, found that there is sufficient material available before it to justify charging the respondents (other than Khurshid Anwar Bhindar and Zafar Iqbal Chaudhry,) for committing contempt of the Supreme Court on account of their disobedience of the order dated 3.11.2007 passed by seven-member bench of this court.
The court ruled that cases now be fixed for framing of charges against the nine judges on February 21, 2011.“The respondents, if they so desire, appear on that date to enter their plea on the charges framed and in the alternative they may, if they choose their pleas through counsel who are duly instructed”, the court ruled.
The court directed its office to place copies of this order and these applications before the chief justice of Pakistan for necessary orders.The court was hearing contempt of court proceedings against these judges for taking oath under the Provisional Constitution Order (PCO), promulgated by former military dictator Pervez Musharraf on November 3, 2007 and detained over 60 judges of the apex court, including the sitting Chief Justice Iftikhar Muhammad Chaudhry, in their houses.
Earlier the same day, after the proclamation of emergency rule and imposition of Provisional Constitution Order (PCO), seven judges of the Supreme Court, including Chief Justice Iftikhar Muhammad Chaudhry, assembled in the court in the evening and passed an order restraining the Government of Pakistan, the president and prime minister from undertaking any such action, which is contrary to independence of the judiciary.
The seven judges had ruled that no judge of the Supreme Court or the High Courts, including chief justices, shall take oath under the PCO or any extra-constitutional step.They also restrained the chief of the Army staff, corps commanders and all concerned civil and military authorities from acting on the PCO.