ISLAMABAD - The Supreme Court on Friday has directed Federal Secretary Law and Justice to issue the notification for the removal of six judges, who had taken oath under Provisional Constitutional Order, by August 9, 2011.
A five-member special bench headed by Chief Justice Iftikhar Muhammad Chaudhry, and comprised Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Sarmad Jalal Osmany and Justice Amir Hani Muslim heard the case regarding non-implementation of SC judgment on PCO judges.
The Chief Justice in his opening remarks said that the order of the apex court should have been implemented and why the government was delaying it.
He asked the Secretary Law and Justice Masood Chishti that why so far the order of the Court has not been complied with.
Babar Awan, representing the Law Secretary, said Prime Minister Syed Yousuf Raza Gilani was busy in other issues, especially Karachi violence.
Therefore, some time should be given as the summary has been sent to the competent authority, he said to which the Chief Justice replied that that was a court order and required no summary.
The Chief Justice said that the government should have respected the judgment passed by a special bench.
He observed that in the absence of Masood Chishti, the acting Secretary Law Sultan Ahmed Shah had misguided the competent authorities.
Nobody had read the summary and signed it, he added.
CJ stated: ‘The government was trying to undermine the authority of the court’.
Babar Awan said that in accordance of the Rules of Business the Acting Secretary had sent the summary to the competent authority.
The CJP remarked that rules are framed under the Constitution, adding, even a decree is passed by a civil court should be implemented.
He asked the Secretary you are bound by the Constitution and under the command of the SC judgment you should have issued the notification for PCO judges removal.
The CJP said that after the 18th and 19th Amendments the dysfunctional judges are no more judges of the superior courts.
Babar Awan requested that as the Prime Minister is not in town ,therefore, two days should be given to issue the notification.
He on behalf of the Secretary stated: ‘The government will issue the requisite notification in pursuance of the court judgment’.
The Supreme Court on May 18th had ruled that the dysfunctional judges had ceased to hold their offices after the passage of 18th and 19th Amendments.
It said the PCO 2007 read with Oath of (Judges) Order 2007 had already been declared unconstitutional by the Supreme Court through a July 31st, 2009, order on a Sindh High Court Bar Association’s petition.
‘Thus no immunity is available to them’, it said.
The court had also sent references back to the government forwarded to the Supreme Judicial Council under Article 209 of the Constitution, which provided the only legal way to send judges home.
The court observed that since these judges had been declared as not being judges, they could not be removed through the SJC and that they could be charged with committing contempt of the court - a defence the dysfunctional judges were banking on by pleading that a judge could not charge another judge with contempt.
The contempt proceedings against the judges are pending before the apex court
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