JUSTICE FOR ALL AND IMPUNITY FOR NONE: ITS PORTRAIL BY THE MEDIA
By:
JUSTICE (R) SYED SHABBAR RAZA RIZVI
Former Judge Lahore High Court Lahore
It has been sincerely and bona fidely
felt that some recent judgments of the Supreme Court of Pakistan caused
injustice to the Justices, who took oath under P.C.O. and impunity to all
military and civil authorities who actually imposed or acted on the
Proclamation of emergency, P.C.O. Order No. l of 2007 in the country on 3rd
November, 2007. This fact has also not been portrayed truly by the media, unfortunately.
According to the Supreme Court it passed a
restraining order on 3rd November 2007, after the issuance of Proclamation of
emergency which directed to:--
(i) Government of Pakistan i.e. the
President and Prime Minister to restrain from undertaking any such action,
which was contrary to the independence of the judiciary;
(ii) Chief
of the Army Staff (then President of Pakistan also), all Corps Commanders,
General Staff Officers and all other concerned military and civil authorities
to restrain from acting on the Proclamation of emergency, P.C.O. No. 1 of 2007
etc;
(iii) The
President and the Governors not to administer fresh oath to Judges of the
Superior Judiciary under PCO No.l of 2007 and Judges
Oath Order No. 1 of 2007. Judges of the superior judiciary were also directed
not to make oath under the above mentioned two Orders.
No penal action was taken or suggested by the Supreme Court against those who administered oath to the judges in disobedience of the above restraining order.
Main judgment in the above controversy has
been delivered by the Supreme Court reported as Sindh High Court Bar Association Vs. Federation of
Pakistan, PLD 2009 SC 879, dated 31st July 2009. Through the said judgment,
the learned Court itself removed all permanent and additional judges of the
respective High Courts who were appointed with consultation of Abdul Hameed Dogar, then CJP.
Similarly, some judges of the Supreme Court were also removed on the same
ground. Those judges who were already holding office on 3rd November, 2007,
i.e. prior to the imposition of emergency in the country were, declared to be
liable to be dealt with under provisions of Article 209 of the constitution.
Under the said Article, Constitution provides an institution namely, Supreme
Judicial Council (SJC), which may hold an inquiry against a judge of the
superior judiciary on ground of misconduct etc. If SJC recommends removal of
such a judge, the President may accept the recommendation. Article
209 (7) of the Constitution reads as under:--
"A judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article."
The ground or reason of taking the above
penal action against the judges of the superior judiciary was taking oath under
the P.C.O. No. 1 of 2007 and Oath Order 2007, in disobedience of the
restraining order. At this point, it may be underscored that the above
mentioned judges were divided into two categories. The first category included
those judges who were appointed on or after 3rd November 2007, they were
removed directly by the Court order dated 31st July 2009. The second category
included those judges who were appointed prior to 3rd November 2007 and were
also holding office on the said date. According to the judgment dated 31st July
2009 action against those judges falling in category No. 2 would be taken under
Article 209 of the Constitution, the same view was reiterated by the same 14
member Bench in the subsequent judgment, in Khurshid Anwar Bhinder Vs. Federation case dated
13th October 2009. On 6th October, 2009 notices for committing contempt of
Court were also issued to the respondent judges on the same ground which, is
unknown in the contemporary judicial history of the world. Date for framing of
charge was also fixed. The list of contemnors included a former Chief Justice
of Pakistan, a former Chief Justice of the Lahore High Court and several
serving judges of the Supreme Court of Pakistan. In view of the above
oppressive and unusual situation all judges except 6 of 3 High Courts, including
this author, tendered their resignations and also sought apology at different
times from 8th October, 2009 to 3rd March, 2011. Interestingly but
unfortunately 5 judges out of the above 6 were also retired through a Court
order on 18th May 2011 on an entirely different ground which shall be
discussed in the later part of this paper. The said decision of the learned
Court was delivered by a 6 member bench against its own earlier judgments which
were passed by 14 member benches. In judgment dated 18th May 2011, not only the
contrary view was taken, the earlier judgments were not considered or discussed
either.
On the other hand, General Pervaiz Musharaf, then President
of Pakistan was declared usurper He and his colleagues were also declared
incompetent to impose emergency, therefore, all his acts, actions, orders and
legal instruments were declared void ab initio,
without lawful authority and without any legal effect. So much so, General Pervaiz Musharaf and all other
authorities both military and civil, who acted upon Proclamation of Emergency
or P.C.O. No. 1 of 2007, were declared to have committed an act of treason.
According to the learned Court, Article 6 read with Article 237 of the
Constitution was fully attracted. For further details and elaboration see
paragraphs 52 to 62 of the judgment dated 31st July, 2009, Several
Constitutional Petitions were filed by lawyers requesting that all adresses or violators of restraining order dated 3rd
November 2007 be treated alike. According to these petitions judges were being
discriminated and injustice was being caused to them. However these petitions
and applications are still pending, no proceedings have been initiated by the
Supreme Court in those petitions/applications.
A Judgement without
notice to the affected parties?
(i) Is it possible to imagine in 21st
Century to pass a judgment without issuing notices to the directly affected
parties? Is it not one of the basic principles of natural justice that nobody
can be condemned unheard? These principles have been mercilessly violated in
the judgment dated 31st July, 2009, The learned Court
itself observed in para-146 of the judgment which reads as under—
"However,
we did not issue notices to the concerned judges of the Supreme Court and High
Courts who made oath in violation of the order dated 3rd November, 2007, as
also the judges who were appointed in consultation with Abdul Hameed Dogar, CJ."
Rule 9 of Order XXV of the Supreme Court
Rules, 1980 reads as under:-
"The notice shall be served on all
persons directly affected." More than 100 judges of the superior
judiciary were removed without issuing notices or providing hearing. To
justify the above infringement of the Constitution and law, the Court relied
upon its two earlier judgments. According to the view of this author, there is
no similarity of the facts and law between the judgment dated 31st July, 2009
and the precedent cases. The cases are reported in PLD 1996 SC 324 and PLD 2000
SC 179. The issue in the former judgment was that appointment of some additional
judges in the respective High Courts were challenged on the ground that the
President of Pakistan had appointed them after consulting the Acting Chief
Justices of High Courts instead of permanent Chief Justices. The learned Court
in the said precedent cases had not removed any judge itself, instead it asked
the concerned permanent Chief Justices to review and re-process the
appointments in the light of the relevant provisions of the Constitution as
elaborated in PLD 1996 SC 324, commonly known Al-Jehad
Trust Case. Following direction of the Supreme Court in the above mentioned
precedent permanent Chief Justices of respective High Courts reviewed and
processed the appointments of additional judges and sent their recommendations,
accordingly to the President of Pakistan in terms of provisions of Article 193
of the Constitution. Some of the additional judges challenged the process of
review and reassessment on the ground that they were not issued a notice. The
Supreme Court observed that the appointment of an additional judge is for a
specified period. Such appointment comes to an end on expiry of period
mentioned in the notification unless the period is further extended or the
appointment is converted into a permanent appointment. While concluding, the Court
in the later case held as under:--
"In these circumstances, we are inclined
to hold that where the Chief Justice of Pakistan, Chief Justice of the High
Court do not recommend a particular incumbent for confirmation or appointment
as a judge and his recommendations are accepted by the President, the same
cannot be brought under challenge in the Court on the ground that the incumbent
was not heard before any such recommendation." (PLD 2000 SC 170 at
195-196)
In view of the above narration, the readers
would agree that the precedent cases were distinguishable from the case of Sindh High Court Bar Association Vs. Federation of Pakistan, i.e
judgment dated 31st July 2009. In the instant case more than 100 serving judges
of the superior judiciary, both permanent and additional were directly shown
the door by the Court order unceremoniously.
The Shariat
appellant bench of the Supreme Court of Pakistan declared that a decision
without notice to the affected parties is a 'zulm'
which means an act of extreme cruelty (PLD 1987 SC 307 at 331). In many other
cases the Supreme Court upheld the above view. For example see, PLD 1964 SC
410. In the said judgment it was observed that even if requirement of notice is
not provided in a statue,
the requirement of issuing a notice to the affected party cannot be ignored.
For further elucidation see PLD 1965 SC 90, and 1999 SCMR 2744. Example many be
cited from the Indian jurisdiction AIR 1992 SC 1213.
Removal of Judges of the Superior Judiciary
under the Constitution
The judges of the superior
judiciary can only be removed under Article 209 of the Constitution. Different
counties have different procedures provided in their respective Constitutions
to remove the judges, prior to expiry of their constitutionally guaranteed
tenure. However in the instant case the Constitution has not been adhered to by
the Supreme Court. In this regard not only the provisions of Article 209(7)
have been ignored but also previous judgments of the Court have not been
followed. Clause (7) of Article 209 of the Constitution is again reproduced as
below:--
"A judge of the Supreme Court or of a High Court shall not be
removed from office except as provided by this Article."
The Supreme Court has been sticking to the above view in every case prior
to 18th May, 2011. Some very recent examples may, however, be briefly
mentioned. The Court upheld the above view in Zafar
Ali Shah's case, PLD 2000 SC 860 at 1211. In judgment dated 31st July, 2009,
the Court set aside the removal of judges who were removed through a
notification by General Pervaiz Musharaf,
dated 3rd November 2007, relying upon provisions of Article 209 of the
Constitution. In this regard paragraphs No.158 and 159 maybe perused. In the
same judgment the Court itself directed the Government of Pakistan to initiate
the process of removal of the judges who took oath under P.C.O. on 3rd November
2007 under Article 209 of the Constitution. Relevant finding and direction is
found in Paragraph 22(iv) of the short order at page 960, Again the above view
was reiterated by the same 14 member Bench in the judgment dated 13th October
2009. The above judgments were passed by 13 or 14 member Benches but their
decision has been reversed by a 6 member Bench by its order dated 18th May
2011. A smaller Bench in strength cannot overrule the view of a larger bench
in strength.
It was mentioned on page 3
of this paper that a date was fixed for framing a charge by a 4 member Bench
against judges who took oath under P.C.O. No. 1 of 2007 by disobeying order of
the Supreme Court. The said Bench also held that judges of the superior
judiciary are not exempted from contempt proceedings against the said order
appeals were filed. Instead of deciding the above question, the appellant
Court, i.e.
6 member Bench vide its judgment dated 18th May 2011 removed the appellants
judges from their offices on the ground that the moment they took oath under
P.C.O., they ceased to be judges. According to the Court their oath was also
not validated by the Parliament in the 18th amendment as oath was validated in
17th amendment of those judges who had taken oath under P.C.O. on 26th January
2000, including present CJP (note that those judges remained without any
validation from 26.1.2000-31.12.2003). Asma Jillani, the present President of S.C.B.A criticized and
termed the above judgment as "third degree treatment through the judicial
pen" (Daily Dawn, 19th May 2011).
Oath under the Constitution made by P.C.O. Judges was not accepted
The Proclamation of Emergency was issued and
imposed with effect from 3rd November, 2007. The Proclamation of Emergency was
lifted on 15th December 2007and the Constitution was restored. The Revocation
of Proclamation of Emergency itself provided that judges of the superior
judiciary would take a fresh oath under the Constitution forthwith. In
pursuance of the above fresh oath was administered under the Constitution to
the judges on 15th December, 2007 The Supreme Court also noted the above fact
in its judgment dated 31st July 2007. For example it was noted in para-92 at
page 1059:--
"This order (lifting of emergency) also
provided that the Chief Justice of Pakistan and judges of the Supreme Court,
The Chief Justice and Judges of Federal Shariat Court
and Chief Justices of High Courts and Judges of High Courts holding offices at
the time of the revival of the Constitution shall make oath under the
Constitution."
Therefore, it is evident beyond any shadow of doubt that on
31st July, 2009 when Judgment Sindh High Court Bar
Association Vs. Federation of Pakistan was delivered, all affected judges
were under Constitutional oath instead of P.C.O. oath yet the learned Court was
not ready to accept the above Constitutional position. Thus, in the judgment
dated 18th May 2011 and to justify itself, the Court innovated
a device to remove the so called remaining P.C.O. judges from their offices in
violation of Article 209 of the Constitution and its own case law. To achieve
the above objective, the Court in judgment dated 18.05.2011, held:--
"thus all judges including the appellants,
who opted to make oath under the said dispensation (PCO No.l
of 2007 and Judges Oath Order, 2007) accepted that they ceased to hold office
the moment the said instruments were promulgated i.e.
3rd November, 2007."
The Court further expressed: "they deviated not only from their
appointments, but also from their oath. Mere making of fresh oath under the
Constitution would not make any difference." According to the Court the
moment a constitutionally appointed judge makes oath under P.C.O., he ceases to
be a judge there and then, therefore, when judges took
fresh oath under the Constitution on 15.12.2007, they had already ceased to be
judges w.e.f. 3rd November, 2007. At this stage, the
author judge, of judgment dated 18th May 2011 also referred to his own oath which
he himself had made under P.C.O. on 26.1.2000. He justified his own oath under
P.C.O. on the ground that it was validated by the Parliament in 17th amendment
of the Constitution dated 31st December 2003. Para-43 at page 50 of the
judgment dated 18th May 2011 reads as under:--
"The above provisions in fact have replaced Article 270-C inserted
by the 17the constitutional amendment legitimating, validly and condoning the
oath taken by the then judges under the PCO and Oath Order, 2000."
The important question which remains unanswered is that
judges who had taken oath under P.C.O. on 26th January 2000 had also ceased to
be judges from the said date, in accordance with the law laid down by the
Supreme Court in the judgment dated 18th May, 2011. If oath taken under the
constitution on 15th December, 2007 is not accepted on the ground that judges
had already ceased to be judges after taking oath under P.C.O. on 3rd November,
2007 then how would validation provided under 17th Amendment on 31st December,
2003 would help those judges who had made oath under the P.C.O., three years
and 11 months ago i.e. 26th January, 2000 and had ceased to be judges? It would
be interesting to note that the present CJP and author judge of the judgment
dated 18th May 2011 justified his taking of oath under P.C.O. in Zafar Ali Shah's case, PLD 2000 SC 869. He held while
writing his own part of the judgment at page 1215 as below:--
"A duty is cast upon the superior
judiciary to offer some recompense for those rights which were purportedly
violated in view of the promulgation of PCO No.l of
1999. This could be achieved only by taking the oath and not by declining to do
so and thereby becoming a party to the closure of the case which would not have
solved any problem whatsoever but would have resulted in chaos, anarchy and
disruption of peaceful life."
It may be asserted at this point in time that the above finding was the
law in Pakistan on 3rd November 2007, laid down by the 13-member Bench, whereas restraining order dated 3.11.2007 was an
interlocutory order (as noted by the Court itself in para-159). In my view the
learned judges of the said Bench should choose the same for themselves which
they have chosen for others. As the famous saying goes "Do not do unto
others what you would not want them do unto you." In the above context we
should also remember the outcome of Malik Asad Ali's case, PLD 1998 SC 161 which was delivered in
pursuance of findings of the Supreme Court made in Al-Jehad
Trust Case, PLD 1996 SC 324.
Service of Court order through Fax.
According to the learned Supreme Court the judges of High Courts were
served restraining order dated 3rd November, 2007 through fax. Similarly, it
states that seven judges of the Supreme Court, after imposition of emergency in
the country, passed a restraining order whereby judges of respective High
Courts were restrained from taking oath under P.C.O. According to the order,
the Registrar of the Supreme Court faxed the order on fax numbers of the
Registrars of the respective High Courts at about 7.30 p.m. All judges of the
High Courts had sworn affidavits that they were never served with these orders.
In every jurisdiction prior to initiating penal process against any person
the Court makes sure that the order of Court has been willfully disobeyed. Likewise,
willful disobedience is only believed if the Court order is served upon the
respondent/contemnor through a legal procedure or legally recognized means of
service. The service of order has to be proved beyond any shadow of doubt but
in the instant case there is no such evidence on the record. The record does
not find any such statement of the Registrar of the Lahore High Court, at
least. This author personally contacted the Registrar to get a copy of the said
fax in writing which was replied in writing by the Registrar in the following
words:--
"I am directed to refer to the subject cited above and to say that
the requisite information regarding copy of fax sent by the Hon’ble
Chief Justice on 3rd November, 2007 has elaborately been discussed
in the judgment dated 31st July, 2009 passed in Const. Petition Nos. 8 and 9 of
2009 by the August Supreme Court of Pakistan."
To avoid the longevity of the paper, I would not like to read or
reproduce the relevant provisions of civil procedure and case law on this
point. However, I may just mention, kindly see Order XLVII1 Rule 2 read with
Order V, Rule 20 of Civil Procedure Code. AIR 1961 SC 1367 from Indian
jurisdiction is also referred in this matter.
After going through the supra referred the paramount question which comes
to the mind is why all that happened? The simple answer is; bias and
unreasonableness knows no limitation,
Judges affected by Judgment dated 31st July, 2009 passed by
SC
Judges who were removed straight away by the above mentioned judgment.
a. Supreme Court
1. Mr. Justice Ijaz-ul-Hassan
2. Mr. Justice Hamid
Farooq
3. Mr. Justice Shaikh
Hakim Ali
4. Mr. Justice Farukh
Mehmood
5. Mr. Justice Qaim
Jan Khan
6. Mr. Justice Moosa
K. Laghari
7. Mr. Justice Ijaz
Yousaf
8. Mr. Justice Zawar
Hussain Jaffery
9. Mr. Justice Sardar
Aslam
b. Lahore High Court (Confirmed Judges)
10. Mr. Justice Zubda-tul-Hassan (Elevated from Session Judge)
11. Mr. Justice Zafar
Iqbal Choudhry
12. Mr. Justice Khawaja
Farooq Saeed
13. Mr. Justice Akram
Qureshi
14. Mr. Justice Khurshid
Anwar Bhinder
15. Mr. Justice Mazhar
Hussain Minhas (Elevated
from Session Judge)
c. Lahore High Court (Unconfirmed Judges)
16. Mr. Justice Saif-ur-Rehman
(Elevated from Session Judge)
17. Mr. Justice Ali Hassan Rizvi (Elevated from Session Judge)
18. Mr. Justice Ashraf
Bhatti (Elevated from Session Judge)
19. Mr. Justice Rana
Zahid Mehmood (Elevated
from Session Judge)
20. Mr. Justice Kazim
Ali Malik (Elevated from Session Judge)
21. Mr. Justice Hafiz Tariq Nasim
22. Mr. Justice Khalil
Ahmad
23. Mr. Justice M.A. Zafar
24. Mr. Justice Saeed
Ijaz
25. Mr. Justice Syed
Masood Shaheen Rizvi
26. Mr. Justice Ali Akbar Qureshi
27. Mr. Justice Ahsan
Bhoon
28. Mr. Justice Habib
Ullah Shakir
29. Mr. Justice Pervaiz
Inayat Malik
30. Mr. Justice Nazir
Ghazi
31. Mr. Justice Naeem
Masood
32. Mr. Justice Zulfiqar
Bukhari
33. Mr. Justice Arshad
Mehmood
34. Mr. Justice Jamshaid
Rehmatullah
35. Mr. Justice Abdul Sattar
Goraya
36. Madam Justice Jamila
Jaha Noor
37. Mr. Justice Akhtar
Mehmood Khan
38. Mr. Justice Imtiaz
Rashid Siddiqui
39. Mr. Justice Shafqat
Abbassi
40. Mr. Justice Irfan
Qadir
41. Mr. Justice Anwar-ul-Haq Punno
42. Mr. Justice Ehtasham
Qadir
43. Mr. Justice Pervaiz
Chawla
d. Peshawar High Court
44. Mr. Justice Yahya
Zahid Gillani
45. Mr. Justice Malik
Mohiuddin
46. Mr. Justice Muhammad Alam
Khan
47. Mr. Justice Shahjaji-ur-Rehman
48. Mr. Justice Mussaddaq
Hussain Gillani
49. Mr. Justice Ziauddin
Khattak
e. Islamabad High Court
50. Mr. Justice Munir
Piracha
51. Mr. Justice Syed
Qalb-e-Hassan
52. Mr. Justice Raja Saeed
Akram
53. Mr. Justice Choudhry
Muhammad Ramzan
54. Mr. Justice Syed
Intikhab Shah
Judges who resigned after the passing of
afore mentioned judgment
e. Supreme Court
55. Mr. Justice Faqir
Muhammad Khokhar
56. Mr. Justice Javaid
Buttar
f. Lahore High Court
57. Mr. Justice Nasim
Sikandar
58. Mr. Justice Abdul Shakoor
Piracha
g. Baluchistan High Court
59. Mr. Justice Amanullah
Yasinzai
60. Mr. Justice Ahmad Khan Lashari
61. Mr. Justice Akhtar
Zaman Malghani
62. Mr. Justice Muhammad Nadir Khan
63. Mr. Justice Mehta Kalashnath
Kohli
Judges who resigned after issuance of
contempt of Court notice by the SC
h. Supreme
Court
64. Mr. Justice Rashid Ahmad Jallandhri
65. Mr. Justice Allama
Khalid Mehmood
i. Lahore
High Court
66. Mr. Justice Najam-u-Zaman
67. Mr. Justice Moulvi
Anwar-ul-Haq
68. Mr. Justice Muhammad Khalid Alvi
69. Mr. Justice M. Bilal
Khan
70. Mr. Justice Fazl-e-Miran Chouhan
71. Mr. Justice Tariq Shamim
72. Mr. Justice Syed
Asghar Haider
73. Mr. Justice Sakhi
Hussain Bukhari
j. Peshawar High Court
74. Mr. Justice Hamid
Durrani
75. Mr. Justice Said Maroof
Judges who decided to contest the contempt
notice issued on the basis of above said judgment:
k. Supreme Court
76. Mr. Justice Syed
Zahid Hussain
l. Peshawar High Court
77. Mr. Justice Jehanzaib
Khan
m. Lahore High Court
78. Mr. Justice Syed
Shabbar Raza Rizvi.
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