ISLAMABAD, Nov 3: In an unprecedented move, seven judges of the Supreme Court on Saturday overturned the Provisional Constitutional Order and restrained the Chief of Army Staff, corps commanders, staff officers and other civil and military officers from acting under the decree.
The judges restrained President Gen Pervez Musharraf and Prime Minister Shaukat Aziz from taking actions contrary to the independence of the judiciary and asked the judges of the Supreme Court and the high courts, including their chief justices, not to take an oath under the PCO or follow any other extra-constitutional step.
Headed by Chief Justice Iftikhar Mohammad Chaudhry, the bench that handed down the unanimous two-page order consisted of Justice Rana Bhagwandas, Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Nasirul Mulk, Justice Raja Fayyaz and Justice Ghulam Rabbani.
Anticipating something unusual, the judges remained in the Supreme Court till late afternoon on a day when the court never assembles. It otherwise would not have been possible for them to pass the order. “We feel that the government has no ground or reason to take extra-constitutional steps, particularly for the reasons being published in newspapers that a high-profile case is pending and is not likely to be decided in favour of the government, although the matter is still pending,” the order said.
Appointment of the chief justice or judges of the Supreme Court or chief justices of the high courts under the new PCO would be unlawful and without jurisdiction, it said.
Copies of the order were sneaked out to the awaiting newsmen outside the court premises.
The order came on an application of Supreme Court Bar Association president Barrister Aitzaz Ahsan. The application was fixed for Monday to be taken up by a full court.
A constitutional expert, who wished not to be named, said the oath taking of the new chief justice was illegal because the PCO was struck down the moment it was issued.
More than seven judges of the Supreme Court were required to reverse the restraining order, he said, adding that to the best of his knowledge only four judges were available in the capital till late Saturday night.
Another lawyer close to the government circles put the blame on the judiciary and lawyers, saying “they asked for it”. He termed the extra-constitutional measure a bitter pill necessary for the treatment of an ailment.
In its order, the Supreme Court said the PCO had been promulgated to enable the government to administer a fresh oath to the chief justice and judges of the court so that favourable judges could be appointed.
Aitzaz Ahsan, while filing his application on Friday, had requested an 11-member bench to take immediate action before the axe fell on the judges. Attorney-General Malik Mohammad Qayyum had replied in an angry tone that no martial law was being imposed.
HOUSE ARREST: Sacked Chief Justice Iftikhar Mohammad Chaudhry and some other judges who refused to take an oath under the new PCO were placed under house arrest shortly after the seven-member bench declared the proclamation of emergency unconstitutional, sources in the police department said.
Justice Chaudhry had earlier been told by the government that his services were no longer required and he had been escorted back to his home.
He returned home in his car carrying the chief justice flag, along with the official motorcade. Alighting from his vehicle, he looked calm and composed and was greeted by his personal staff.
His home was later surrounded by personnel of the Islamabad police, Punjab Constabulary and intelligence agencies. The road leading to judicial colony had been blocked since evening.