Government ordered to de-notify PCO judges
ISLAMABAD: The Supreme Court rejected on Wednesday intra-court appeals of six judges against contempt notices issued to them for taking oath under a Musharraf-era Provisional Constitution Order and ordered the government to de-notify five of them who are still part of the judiciary but are dysfunctional.
Chief Justice Iftikhar Muhammad Chaudhry, who heads a six-judge bench hearing the appeals, said the army chief had no authority to issue the PCO and hold the Constitution in abeyance.
Former president Pervez Musharraf had issued the PCO on Nov 3, 2007, as army chief after declaring emergency in the country. He was holding both the offices at that time (under the 17th Amendment introduced by him and approved by parliament).
But Wednesday’s judgment, authored by the chief justice, said that an army chief appointed by the president in consultation with the prime minister of the day had no authority to hold the Constitution in abeyance.
The PCO judges, who had filed the appeals against the contempt charge slapped by a different bench, are: Justices Syed Shabbar Raza Rizvi, Hasnat Ahmed Khan, Syed Hamid Ali Shah and Syed Sajjad Hussain Shah of the Lahore High Court; Justice Ms Yasmeen Abbasey of the Sindh High Court and former LHC chief justice Iftikhar Hussain Chaudhry.
The court held that the dysfunctional judges had ceased to hold their offices after the passage of 18th and 19th Amendments.
It said the PCO 2007 read with Oath of (Judges) Order 2007 had already been declared unconstitutional by the Supreme Court through a July 31, 2009, order on a Sindh High Court Bar Association’s petition. “Thus no immunity is available to them,” it said.
However, the verdict said, the appellants would be entitled to service and pension benefits up to April 20, 2010 (when the18th Amendment was passed). But at the same time the judgment made it clear that if the judges were found to be guilty of contempt of the court the amount of the benefits would be recovered from them.
The court rejected a plea to condone the actions of taking oath under the PCO by the appellants and explained that pardoning would mean reverting to the doctrine of necessity, already buried through the July 31 judgment.
“If such concession is extended to them, other beneficiaries, responsible directly or indirectly for violation of the Constitution, will also be benefited. Therefore, the plea is declined.”
The verdict made it clear that courts had no jurisdiction or authority to legitimise or validate any action based on extra-constitutional steps because no such expediency was permissible under the constitutional dispensation nor it should be
applied in future.
However, it said, parliament enjoyed jurisdiction to legitimise any deviation and under Article 6 of Article 239 of the Constitution, there was no limitation whatever on parliament to amend provisions of the Constitution.
The judgment said: “A constitutional document is not an ordinary legislative instrument, rather a supreme law of the land, being an accord among the people. It is an instrument for running the affairs of the country. It governs the rights and obligations of the citizens. Even a child born today is a subject of the Constitution.
“Thus, appellants by accepting PCO oath violated their oath under the Constitution and, therefore, cannot take advantage of omissions and commissions done by them in accordance with the well-known principle enshrined in the maxim: ‘nullus commodum capere potest de injuria sua propria’ which means ‘no man can take advantage of his own wrong’.
“It is a matter of record that past constitutional deviations were always condoned, legitimised and validated through legislative interventions by the parliament, including the actions of judges by making oath instead of proceeding against dictators for deviation for abrogating or subverting or holding in abeyance the Constitution.
“Only those judges were allowed to continue in the office who agreed to make PCO oath and later constituted a bench to declare General Pervez Musharraf to be the President of Pakistan. After having obtained this verdict Gen Musharraf made oath in uniform and continued to be the president for a further period of five years, till he resigned from the said office.
“This is a painful constitutional history. One can imagine how a person, who was interested to grab the constitutional powers, not only deleted some of the provisions of the Constitution to achieve his objective but also destroyed the whole institution of judiciary, one of the most important pillars of the state under the scheme of trichotomy of powers.
“It is also significant to note that the courts as well as the parliament unfortunately had been privy to the deviations of the Constitution, mostly relying on the law of state necessity in cases like 1958 Dosso, 1997 Begum Nusrat Bhutto, 2000 Zafar Ali Shah and 2008 Tikka Iqbal Muhammad Khan. But these judgments delivered by the superior courts were never considered as good laws and stood nullified after the pronouncement of the July 31 judgment as well as the passage of 18th and 19th Amendments.
“In a country like ours powerful persons in the helm of affairs had been doing so in the past, not only with the assistance of the judiciary but also with the help of chosen representatives getting validation of unconstitutional actions by means of legislative interference, as is evident from the 8th and the 17th Amendments.
“The members of the judiciary are not ordinary persons and they are supposed to know the consequence of the constitutional deviations. No one can claim amongst the members of the superior judiciary including the appellants that constitutional deviation by a dictator notwithstanding the judgment of the court can be rectified, legitimised except with the legislative interference by the parliament, that too, by making amendment in the Constitution.
“It is a matter of great satisfaction and encouragement for all the right men, who believe in the constitutionalism and are of the affirmed commitment that in our beloved country there should not be any rule except one under the Constitution.”
Source: Dawn
Date:5/19/2011
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