ISLAMABAD: The Pakistan Bar Council (PBC) instituted a much-delayed petition before the Supreme Court on Tuesday, seeking review of the July 31, 2009 judgment that sent over 100 superior court judges packing.

This is the fourth attempt to move such a petition. Previously, retired General Pervez Musharraf had filed a petition, which was dismissed by a 14-judge bench, headed by former chief justice Tassaduq Hussain Jillani, on Jan 30 this year for “presenting irrelevant precedence” and being time-barred.

Later, in a detailed order, the Supreme Court explained that the July 31 verdict underpinned a strong realisation to turn a new leaf; towards constitutionalism and rule of law and steering clear of mistakes in history.

Petition argues judges are not subject to contempt proceedings

The Lahore High Court Bar Association (LHCBA) had moved a similar petition, which was returned by the Supreme Court office. An appeal against the decision is currently pending before court.

On Jan 25, 2010, while hearing review petitions moved by affected superior court judges who faced contempt proceedings as a consequence of the July 31 verdict, the Supreme Court ruled that the verdict was considered a triumph for democratic principles and a stinging denunciation of dictatorship.

The detailed verdict, authored by former Justice Javed Iqbal, notes that had the superior judiciary not gone down the PCO route, the course of Pakistan’s political and judicial history would have been different.

Now, Abrar Hassan, chairman of the PBC’s executive committee, has moved the latest review petition arguing that removing judges from the superior judiciary in a manner not contemplated by the Constitution was a miscarriage of justice.

“For the larger good of the institution, the bar and the bench being wheels of the same chariot, the petitioner felt its constitutional and legal duty to approach the Supreme Court under Article 184(3) of the Constitution as questions of great public importance affecting the fundamental rights of members of the association (PBC),” the petition states.

The Supreme Court should lay down in clear terms that no judge of the superior judiciary, once appointed a judge, could be removed except through the procedure laid down under Article 209 of the Constitution (which deals with the Supreme Judicial Council) as highlighted by the apex court in the Al-Jihad Trust case of 1996 and the Zafar Ali Shah case of 2000, the petition argues.

It becomes absolutely necessary to determine the circumstances and reasons that compelled judges to tender their resignations and seek premature retirements, the petition insists, adding that for the sake of honour of the institution and their own dignity, the judges had not raised the matter before the court themselves.

The petitioner pleaded that the Supreme Court should also consider the true state of Nov 3, 2007 restraining order by a seven-judge bench headed by then chief justice Iftikhar Muhammad Chaudhry and determine whether the order was applicable upon judges of the superior court or not.

A judge of the superior court, the review petition explained, was not a “person” as contemplated under Article 204 of the Constitution and, therefore, not liable to process of contempt of court.

The PCO judges, the petition states, should be treated as a part of the superior judiciary, wherever they were on July 31, 2009, and to be considered to have been continuously in office, subject to superannuation.

Similarly, the Judicial Commission of Pakistan – constituted for the appointment of judges – may reconsider its rules so that members of the commission may effectively participate and discharge their functions in accordance with the Constitution and law in the appointment of a judge, the review petition argues.

Published in Dawn, July 9th, 2014