Case hearing: PCO judges may be tried under Article 209, says Zafar

Defendant’s counsel claims superior judiciary cannot be served contempt notices.

ISLAMABAD: SM Zafar, counsel for Justice Zahid Hussain, a PCO judge, reiterated in the Supreme Court on Tuesday that superior courts’ judges could not be served contempt of court notices under any circumstances.

“The PCO judges may be tried under Article 209 of the 1973 Constitution by the Supreme Judicial Council (SJC),” he argued before a four-member bench of the Supreme Court.

The bench was headed by Justice Mahmood Akhtar Shahid Siddiqui and comprised Justice Jawad S. Khawaja, Justice Khilji Arif Hussain and Justice Tariq Pervez.

The bench was hearing the cases of the judges of the superior courts who had taken oath under the PCO promulgated by former president Pervez Musharraf in November 2007. The Supreme Court declared the PCO void ab initio in 2009, terming President Musharraf’s step illegal and unconstitutional.

During the hearing, Justice Jawad Khawaja observed that it is the collective responsibility of every institution to abide by Article 6 of the Constitution, which states that any person who subverts the constitution or attempts to abrogate it, shall be guilty of high treason.

SM Zafar contended that whatever offence was committed by the former Chief Justice Abdul Hameed Dogar, those who took oath from him are guilty of the same, referring to the president of Pakistan Asif Ali Zardari. He maintained that Chief Justice Iftikhar Muhammad Chaudhry had recommended him as a justice of the Supreme Court, well aware of the fact he was a PCO judge.

“These statements have no legal effect, they are all political statements,” Justice Tariq Pervez observed. His selection was the personal opinion of a judge, while the PCO was declared illegal by a larger bench in 2009.

“Is there no difference between a judge who takes oath from a dictator and one who takes oath under the Constitution?” Justice Siddiqui inquired of the defendant’s counsel.

“The Sindh High Court condemned the judges violating the Supreme Court’s directive of November 3, 2007. There was no mention of judges who took oath under the PCO, SM Zafar stated, concluding his arguments.

The attorneys for other PCO judges, Advocate AK Dogar and Rana Mohammad Azeem, were presenting their arguments when the court adjourned the hearing till Wednesday.

Published in The Express Tribune, January 5^th, 2011.