Judges cannot be sent to jail or removed, SC told
ISLAMABAD: The Supreme Court hearing contempt cases against superior court judges for taking oath under the Provisional Constitution Order in defiance of a restraining order was told on Monday that judges could neither be sent to jail nor removed, without recourse to the Supreme Judicial Council.
“Even in case of any offence against superior court judges, they cannot be sent to jail. Their cases are always first referred to the chief justice,” argued Advocate Raza Kazim before a five-judge bench comprising Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S. Khawaja, Justice Khilji Arif Hussain and Justice Tariq Parvez.
Abdul Hameed Dogar, former chief justice of the Supreme Court, Iftikhar Hussain Chaudhry, former chief justice of the Lahore High Court and eight sitting judges – Justice Sayed Zahid Hussain of the Supreme Court and Justice Khurshid Anwar Bhinder, Justice Hamid Ali Shah, Justice Zafar Iqbal Chaudhry, Justice Hasnat Ahmed Khan, Justice Syed Shabbar Raza Rizvi, Justice Yasmin Abbasey and Justice Jehan Zaib Rahim of high courts – are facing contempt charges for taking oath under the PCO in defiance of a restraining order issued by a seven-judge bench moments after the proclamation of emergency by former president Gen (retd) Pervez Musharraf on Nov 3, 2007.
The judges went home when a 14-judge SC bench had on July 31 last year declared Gen Musharraf’s second coup and actions taken under it unconstitutional, including the appointment of over 100 superior court judges.
The case acquired importance when Supreme Court Bar Association President Asma Jahangir recently pointed out what she termed injustice to seven judges facing contempt of the court after the July 31 judgment. She deplored that principles settled in the Justice Khalilur Rehman Ramday’s judgment that even a temporary disability cast on a judge in matters of discharging constitutional and official obligations amounted to removal from office and was not permitted by the Constitution, were not being applied.
During the proceedings on Monday, Justice Sair Ali observed that the court had all the respect for the judges facing contempt charges, but history had brought them to a verge where they had to decide the matter.
Advocate Raza Kazim, the counsel for Justice Syed Hamid Ali Shah, argued that the judiciary could not act as a police force and that hearts and minds could not be won over through guns and bullets. He said that immunity enjoyed by a sitting judge against any offence always came from the Constitution.
Citing judicial history from the colonial era, Advocate Raza said the Supreme Court judge during that period was never confronted with criminal proceedings even though the subordinate judiciary was safeguarded against criminal proceedings under Judicial Order of Judges Protection Act, 1850.
“Judges are not only equal before the law but also subordinate to it,” the counsel said, adding that there were discrepancies in the July 31 verdict.
Here in this case, he said, his client was facing prospects of contempt proceedings leading to six-month imprisonment. “Where will you draw a line between contempt proceedings and criminal subject,” he asked.
Advocate Wasim Sajjad, the counsel for Justice Khursid Anwar Bhinder, argued that judges could not be served contempt notices. He said that the issue was creating a rift in the legal community and the court should have exercised restraint in dealing with the matter.
He recalled that the Nov 3 restraining order had been vacated by a bench headed by then chief justice Abdul Hameed Dogar on Nov 6, making the earlier one ineffective.
The case will be taken up again on Tuesday.