ISLAMABAD, April 3 Chief Justice Iftikhar Mohammad Chaudhry observed on Friday that a superior court judge could be removed from office only by invoking constitutional provisions through a reference sent to the Supreme Judicial Council.
He made observation while hearing a petition moved by the Sindh High Court Bar Association against non-confirmation of two Sindh High Court judges, Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar.
A three-judge bench comprising the chief justice, Justice Mian Shakirullah Jan and Justice Raja Fayyaz Ahmed asked the federal government to submit a reply in three weeks.The bench observed that removal of judges under the Provisional Constitution Order issued on Nov 3, 2007, by the former president while proclaiming the emergency rule was “illegal and unconstitutional”.
The court also summoned Attorney General Sardar Latif Khan Khosa and issued notices to the government of Sindh and the SHC registrar.
SHCBA President Rasheed A. Razvi argued that superior court judges had been removed in the most unconstitutional manner, but their sacking was justified by the Supreme Court which validated the Nov 3 emergency in the Tikka Mohammad Iqbal case, which itself was contrary to the rules laid down by a 12-member bench in the Zafar Ali Shah case. Therefore, the decision in the Tikka Iqbal case was without any legal sanctity, he argued.
Justice Zafar Sherwani and Justice Rasheed Kalwar were appointed additional judges of the SHC on Sept 17, 2007, for six months which was later extended. The SHC chief justice after evaluating the performance had recommended regularisation of six judges, including Justice Sherwani and Justice Kalwar.
With mala fide intention, the petition alleged, Secretary Law Agha Rafiq, who was simply required to place the recommendations before then Chief Justice Abdul Hameed Dogar and the president, wrote back to the Sindh governor that the term of Justice Sherwani and Justice Kalwar had expired on March 3, 2009, instead of Aug 25, 2010.
The former chief justice also wrote a letter to the SHC chief justice asking him to stop giving judicial work to the two judges, the petition said, adding that the former chief justice could not act as the chief justice and, therefore, was not a proper consultee.
The petitioner requested the apex court to declare that both the judges would still be additional judges of the SHC till Aug 25, 2010, and that their term had not expired as opined by the former chief justice.
He also appealed to the bench to direct the SHC registrar to assign regular judicial functions and duties to the two judges. The federal government and the high court registrar might also be asked to place the record of consultation leading to the issuance of March 12, 2009, notification before the apex court, he added.
He asked if Justice Hameed Dogar could, in the presence of the chief justice, occupy the office of the chief justice under an unconstitutional PCO and make recommendations for appointment or removal of any additional judge of the high court, and could Justice Dogar disagree with recommendations of the SHC chief justice without any cogent reason or grounds.