ISLAMABAD, July 4: The Supreme Court issued on Friday the detailed judgment on a hurriedly-moved review petition challenging the Nov 3 declaration of emergency by President Pervez Musharraf as the army chief.

It was earlier dismissed on the grounds that the petitioner had failed to make any case for review of its earlier short order and subsequent detailed judgment.

“Review proceedings cannot partake re-hearing at a decided case,” the detailed judgment said, dismissing the review petition filed by Tikka Iqbal Mohammad Khan.

Authored by Chief Justice Abdul Hameed Dogar, the verdict explained that if the court had taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order could not be obtained on the grounds that the court took an erroneous view or that another view on reconsideration was possible.

It said: “Reviews also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced.

“A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberation, and have a material bearing on the final result of the case.”

Reaffirming its stand on reinstatement of ‘former’ chief justices and judges of the superior courts, who were not given, or who had not taken, oath under the Oath of Office (Judges) Order, 2007, the judgment said this court had examined the issue with all its ramifications and found that they had ceased to hold their office on Nov 3 last year.

It said: “Later, by virtue of President’s Orders No 8 and 9 of 2007 dated December 14, 2007, they have been retired and held entitled to draw pensionary benefits accordingly.

“On December 15, 2007, the emergency has been revoked by the President by the Revocation of Proclamation of Emergency Order, 2007. The Order No 1 of 2007 has been repealed. However, the revocation or repeal would not revive anything not in force or existing at the time of the revocation or repeal, or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Order No 1 of 2007 and the Oath of Office (Judges) Order, 2007.

“The action in respect of the former chief justices and former judges, being a fait accompli and hit by the doctrine of past and closed transaction cannot be re-opened and is irreversible.

“Reference to Article 209 of the Constitution (Supreme Judicial Council) in the matter is inapt, as the said provision cannot be attracted where the Constitution is held in abeyance. Thus, the case of such judges is fully covered by the law laid down in Zafar Ali Shah’s case.

“The Constitution has been revived while the chief justice and other judges of the superior courts have taken oath of office as provided by the Constitution. Being holders of constitutional office, all such judges, including the chief justices, should be governed by the Constitution. The rights, privileges or obligations so acquired, accrued or incurred, including their tenure of office, are protected under the Constitution.”