Judiciary responsible for army takeovers: Chief Justice

ISLAMABAD :Chief Justice Iftikhar Muhammad Chaudhry on Monday held judiciary responsible for military takeovers, saying that validating their decisions through 'law of necessity' was erroneous as well as regretful.

If judiciary had stood up against the imposition of repeated martial laws from Mulvi Tameezud Din (1954) case to Iqbal Tikka Khan (2007) petition, the incident of November 3, 2007 (PCO and emergency promulgated by former President General Pervez Musharraf) would not have taken place, observed the Chief Justice while hearing the case filed by Sindh High Court Bar Association (SHCBA) against non-confirmation of two additional judges Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar of the Sindh High Court (SHC).

A 14-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry and comprising judges who did not take oath under the PCO on November 3, 2007 has been constituted for hearing the matters regarding appointment of judges.

Other members of the bench included Justice Javed Iqbal, Justice Sardar Muhammad Raza Khan, Justice Khalilur Rehman Ramday, Justice Mian Shakirullah Jan, Justice Tassadaq Hussain Jilani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed, Justice Ghulam Rabbani, Justice Sarmad Jalal Osmani, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui and Justice Jawwad S Khawaja.

One elected Prime Minister was executed then one more dictator came and threw out the elected prime minister and the incident of October 12, 1999 took place. "We all are responsible for all this", he added. "It is very sorry state of affairs, and we have to set our house in order," he observed.

He further said that it is responsibility of the judiciary to show firmness to the constitution for sustainability of democratic order in the country. Meanwhile, the court accepted a petition seeking removal of judges appointed without consultation of the Chief Justice for hearing.

Advocate Akram Sheikh had filed the petition on behalf of Advocate Nadeem Ahmed with the prayer "to declare all those persons, both in Supreme Court and high courts, regardless of whether they have taken oath under PCO or the Constitution, who have been appointed without 'consultation' of Chief Justice of Pakistan as not judges and therefore, not entitled to function as such."

The Chief Justice issued notice to the Federation and observed: "the case would decide the future of democratic order of the country." Rashid A Rizvi, president of the SHBC arguing the case before the bench said recommendation for appointment of these two judges were made by the de jure CJ of SHC to de facto Chief Justice Abdul Hameed Dogar. The preference should have to be given to the de jure CJ, he added.

Did the President considers, Justice Dogar as de facto judge? Observed Justice Sardar Muhammad Raza Khan. Responding to the question, Rizvi referred to the notification issued on March 21, 2009 regarding reinstatement of deposed judges including the CJ and said by not asking for a fresh oath the President had admitted Justice Dogar as de facto.

Rizvi said the decision in Iqbal Tikka Khan's case was illegal but a 13-member larger bench (to hear review) was constituted to purge it from illegality. Review order was manipulation of the bench to overcome the lacuna. Describing it further, he said that in Zafar Ali Shah's case the 12-judge bench had laid down a principle that in future a judge would not be removed from his office except following Article 209 of the Constitution.

However, a seven-member bench in Iqbal Tikka's case violated the order, therefore, a 13-member bench was constituted and review was settled merely in a single day proceedings, he added. Rizvi said that Article 270-AAA was never discussed in Tikka's case and said though it is a settled principle that an executive cannot amend the Constitution, General Musharraf (Retd) was permitted to do so.

Do you want us to declare 270-AAA unconstitutional? Asked Justice Sarmad Jalal Osmani. Rizvi replied in affirmative saying a general cannot amend the Constitution in the presence of parliament. Justice Sarmad Jalal Osmani observed: "if you want to bring all those responsible for proclamation of emergency (2007) to book, those behind it should also be held accountable for that."

The Chief Justice asked Rizvi to give background of events, which led to November 3, 2007 emergency. Rizvi read out the speech delivered by the then President Pervez Musharraf regarding imposition of emergency. He said that he delivered speech as President but emergency was proclaimed as Chief of Army Staff (COAS). Justice Nasirul Mulk observed that nine out of 12 allegations for proclamation of emergency are against the judiciary.

One of the allegations against the judiciary was that it was delaying some cases (holding dual office: President and COAS) and a judge was blamed for adjournment as he had to attend marriage ceremony of his daughter. Justice Javed Iqbal observed that Attorney General (Malik Muhammad Qayyum) and Sharifuddin Pirzada were responsible for the postponement of the case.

"The basis of emergency was judiciary's refusal to deliver as desired by the government. There is a big difference between personal gain and Pakistan first (slogan of Pervez Musharraf referred during proclamation of emergency)," observed Justice Javed Iqbal, adding We - judges are also Pakistanis and have patriotism and we decide cases according to the Constitution.