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SC judges gather late at night; AG summoned before 17-member bench today; court registrar says judges’ appointment, removal mechanism clear in Constitution; restoration issue settled in July 31, 2009 verdict
 
 
Sohail Khan
Friday, October 15, 2010
From Print Edition
 
 

 

ISLAMABAD: The possibility and speculations about the withdrawal of the notification to restore the SC judges exploded into a crisis on Thursday night, forcing the Supreme Court judges to rush to the Supreme Court building late in the night and summon a full court hearing on Friday, amid strong government denials that no such move was afoot.The issue became serious when a late night press release issued by the Supreme Court informed the nation that the SC had taken notice of the reports on TV channels and had registered a case which will be heard by a full 17-member bench of the SC on Friday. A notice had been issued to the Attorney General to appear before the bench.

 

There were strong speculations in the media in the evening that the government was considering the move to remove the SC judges by cancelling the notification which had been issued after the Long March of March 16 to restore the judges.

 

Some federal ministers and other close associates of President Zardari had been privately saying that such a desperate move could be contemplated if the SC did not back off from major anti-government and anti-Zardari decisions on the NRO and 18th amendments cases.

 

The Prime Minister had earlier at around 8.30 pm issued a denial that any such move was afoot. But the SC judges started streaming into the SC building late at night, some in cars without number plates and a Press release was issued which gave credence and seriousness to the entire issue.

 

The judges in their release referred to the statement of Prime Minister Gilani that the executive order of to restore the judges had not been verified by the parliament.

 

All 17 judges of the Supreme Court including Chief Justice Iftikhar Muhammad Chaudhry held an important meeting here at the Supreme Court premises late Thursday night in the wake of some reports, aired by several TV channels, reporting that the government was considering to withdraw the notification of March 16, 2009 of restoration Chief Justice of Pakistan and other judges of the superior judiciary.

 

Soon after the reports, Prime Minister Syed Yiusaf Raza Gillani contradicted such reports however, all the 17 judges of the apex court late Thursday night assembled in the apex court and held important meeting and later on issued a statement announcing constitution of 17-member bench to take up the matter today (Friday). Notice has been issued to Attorney General for Pakistan Maulvi Anwarul Haq to appear before the court.

 

 

“As per reports telecast tonight on several TV Channels including AAJ, GEO & ARY, alleging that the Government is considering to withdraw the notification/executive order dated 16.03.2009 of restoration of the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan and Chief Justices/Judges of High Courts. Some newspapers have already reported this issue as well. Earlier on, few months ago, a similar statement was made by one of the high constitutional office holders in the Parliament, says the order issued by the apex court late Thursday night.

 

The order further said “As the news item was flashed by other TV channels, some channels have also telecast denial today (14.10.2010) from the Government, saying that there is no truth behind the said news.

 

The apex court clarified that the issue of restoration of Judges through notification has already been conclusively settled by the Supreme Court of Pakistan in its judgment dated 31.07.2009 in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879)

 

The court reproduced relevant paragraphs which stated that The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President’s Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President’s Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President’s Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President’s Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect.

 

As a consequence thereof, the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;”, the order said.

 

The court order observed that the issue of appointment or removal of Judges is clearly prescribed by the Constitution of Pakistan, which has been elaborated through successive verdicts of the Supreme Court.

 

“The Supreme Court has held time and again that a Judge of the superior judiciary may not be removed except on the grounds and as per procedure laid down in Article 209 of the Constitution”, says the order.

 

In view of the facts stated above, the Chief Justice of Pakistan, on a note moved by the Registrar, has ordered registration of the matter as Civil Miscellaneous Application and its fixation before a 17 - Member Bench on today Friday while notice have been issued to the Attorney General for Pakistan , the order concluded.

 

Earlier, All the judges of the Supreme Court (SC) held an unusual meeting to mull over the reserved ruling in the case of petitions filed against some articles of Eighteenth Amendment.

 

Various SC benches held hearings till the interval at 11am on Thursday. Later on, a full-court session was held for consultations with Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry in the chair.

 

Sources informed that the meeting mulled over various judicial and legal matters and also gave thought to the ruling reserved in the case relating 18th Amendment.

 

It is to recalled, that the apex court had reserved the verdict on September 30 after continuous hearing spanning four odd months and decided to deliver elaborate verdict not the short order.

 

“In view of the facts stated above, the Hon’ble Chief Justice of Pakistan, on a note moved by the Registrar, has ordered registration of the matter as Civil Miscellaneous Application and its fixation before a 17 - Member Bench on 15.10.2010. Notice has been issued to the Attorney General for Pakistan,” the press release said.