SC discusses if judges can be issued contempt notice

PCO judges case hearing opens Pandora's Box of questions.

ISLAMABAD:

A contempt of court notice cannot be issued to a judge, SM Zafar, counsel for Justice Syed Zahid Hussain, argued on Tuesday.

He was defending his client before a four-member bench of the Supreme Court that was hearing the contempt of court proceedings against judges who took oath under the Provisional Constitutional Order (PCO). The four-member bench, presided over by Justice Mahmood Akhtar Shahid Siddiqui, comprises Justice Jawad S Khwaja, Justice Khilji Arif Hussain and Justice Tariq Pervaiz.

Arguing further, Zafar said that his client, who is a judge of the Supreme Court, is presently on leave, which rendered the court incomplete. “A court cannot be considered complete without a judge, because he is an important and integral part of the court,” Zafar said. He also pleaded that the judge in question, being a justice of the Supreme Court himself, represented the court. No law exists in this context, he said.

However, Justice Siddiqui remarked that when the judiciary confronted a dictator on November 3, 2007, some judges supported him despite the fact that his steps had not been endorsed by the parliament.

“An institution cannot be established within an institution,” Justice Siddiqui said.

“My Lord you cannot recount history; you can only interpret the laws and the Constitution,” Zafar submitted before the bench.

“You mentioned in your book that when making a decision, events have to be taken into consideration. The authors of the Constitution had not envisaged such incidents would occur in Pakistan,” Justice Khawaja observed.

Zafar submitted that despite what happened in the past, one has to bear in mind that a judge is different from a common man. “We have to consider the matter in a historical perspective,” Justice Khawaja observed. “The authors of the Constitution never even imagined such extraordinary events would take place.”

“They must have envisaged such extraordinary events, which is why they created the Supreme Judicial Council for the accountability of judges,” Zafar pleaded.

While Zafar presented his arguments, the bench announced that hearing had been adjourned till Wednesday and he will resume his arguments in the next hearing.

Justice Syed Zahid Hussain joined the legal fraternity in 1972. He was an associate of SM Zafar in the firm Zafar Law Associates.

He was appointed as the Chief Justice of the Lahore High Court in 2008. A year later, he was elevated as a justice of the Supreme Court.

Published in The Express Tribune, December 15th, 2010.