‘PCO judges were duty-bound to take oath under the ordinance’

It is the constitutional duty of judges to take oath and save the system, argues PCO judge’s counsel.

ISLAMABAD: The Supreme Court resumed on Wednesday the contempt of court case hearing against judges who took oath under Provisional Constitutional Order (PCO) on November 3 violating a seven-member bench verdict in this connection.

Ali Zafar, the counsel for Justice Yasmeen Abbasi, reiterated before the five-member bench headed by Justice Sair Ali that contempt of court notice could not be served on sitting superior court judges.

Ali Zafar submitted that high courts are not subordinate to the Supreme Court, therefore, one court could not issue directives against the other, but on November 3, 2007, the SC had issued a notice to the high courts.

He said that there were a number of judgments in this regard, adding that there were instances in the country’s history where two SC benches had passed orders contradicting each other. He asked if a contempt notice was issued for a judicial decision, then the “independence of high courts is no more”.

Justice Sair Ali asked him to elaborate what he meant by a judicial decision. “Is there any immunity to judges in the law?”

Citing the decision of the Supreme Court in Zafar Ali Shah case as an authoritative verdict, he said that the decision of the seven-member bench on November 3 was contemporary in its nature and contempt proceedings could not be justified against superior court judges for violating the same.

Zafar said that it was the legal position before the July 31 judgment that it was the constitutional duty of the Supreme Court and the high court judges to take oath and save the system.

“In the Zafar Ali Shah’s case judgment, it has been stated that judges should take oath under PCO to save the judicial organ of the state,” he said.

Dr Abdul Basit, the counsel for Justice Syed Shabbar Raza Rizvi and Justice Hassnat Ahmad Khan, submitted before the court that his clients had objections on the bench’s composition and, therefore, he wanted to hear the court’s decision in this regard first.

The court asked him to argue his case “without going into further controversies” but he called for more time and said that he would argue on Friday. The court accepted his plea and adjourned the case till Thursday.

Published in The Express Tribune, December 2^nd, 2010.