ISLAMABAD, Nov 16: Three judges on a 10-member Supreme Court bench hearing petitions against the imposition of emergency on Friday said they wanted to opt out of the bench.
Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar and Justice M. Javed Buttar said judicial propriety demanded that they detached themselves from the bench after President Gen Pervez Musharraf had cited their recent judgments to justify the imposition of emergency.
They said they would make their decision known at the next hearing on Monday.
Soon after the conclusion of Friday’s hearing, an informed source told Dawn that at a meeting held in the Supreme Court the three judges expressed their inability to sit on the bench when the case would be taken up next week.
“Judicial propriety demands that I should not sit on the bench because repeated references have been made that the Supreme Judicial Council had been made ineffective and militants had been released on the orders of the apex court,” Justice Khokhar observed at the fag end of the proceedings.
The petitions challenging the emergency rule, PCO and curbs imposed on judges of superior courts, electronic media and the freedom of citizens have been filed by Tikka Iqbal Mohammad Khan and Watan Party chairman Barrister Zafarullah Khan.
“Since I was a member of the bench which restored Chief Justice Iftikhar Mohammad Chaudhry, now again deposed under the Provisional Constitution Order, I should recuse myself from the bench,” Justice Khokhar said.
Justice Abbasi said if his brother judge would not sit on the bench how could he and Justice Buttar sit because they too were part of the benches which had heard the cases of missing people and the Lal Masjid.
One of the reasons cited for the proclamation of emergency was that militants had been released on the orders of the Supreme Court, Justice Abbasi said.
“But this is a misconception,” he said, adding that not a single instance was on record to prove that militants had been released on court orders. Advocate Irfan Qadir, the counsel for Tikka Khan, said he had complete faith in each member of the bench but every judge had the right to opt out of the bench.
Attorney General Malik Mohammad Qayyum said the bench was being over sensitive and suggested that it could hold in its judgment that failure of the judiciary could not be made a ground to justify the emergency rule.
After hearing the petitions for three days, the members of the bench were now saying they wanted to excuse themselves from the bench, he said.
“Many judges while sitting in the high courts must have dealt with cases of terrorism, but can it be made a reason not to hear the instant petitions?”, he asked. He requested the judges to reconsider their decision.
Justice Khokhar said nobody could dictate a judge, but his own conscience.
Earlier, Irfan Qadir had argued that the court could not confer unbridled powers on the army chief to amend the Constitution, adding that even in extreme circumstances, which was not the case at the time of proclaiming emergency, such powers could not be delegated.
He tried to establish that the PCO was subservient to Article 2A (Objective Resolutions) of the Constitution and when this Article was not suspended, fundamental rights could not be suspended.
