PCO judges file review petition

KARACHI/LAHORE - Four sacked judges of Sindh High Court on Friday filed a petition in Supreme Court, seeking review of the July 31 verdict on removal of the PCO judges. Mazhar Ali Chohan advocate appearing for the PCO judges including Justice Munib Ahmed Khan, Justice Ms Yasmeen Abbasi, Justice Nadeem Siddiqui and Justice Qaisar Iqbal, told the media about review petition, challenging the SC verdict. Meanwhile, another review petition is likely to be filed by Justice Ali Dino Methlo on Saturday (today). It was submitted in the petition that neither the sacked judges were made party in the July 31 decision nor had the court called for the comments of the sacked judges, said the counsel. He said judges concerned were not even aware about the November 3, 2007 decision passed by the SC. Moreover, no copy of the decision was either sent to the high court or to the judges concerned. He maintained that the judges took oath according Article 189 of the Constitution. While terming the decision against the PCO judges as hostile and discriminatory, Advocate Chohan said the SC gave July 31 decision against the PCO judges without issuing any notice to them, and that they were not even called to express their view points. In Lahore, two removed ad hoc judges of Lahore High Court Muhammad Ahsan Bhoon and Anwarul Haq Pannu filed petitions in the Supreme Court for review of its July 31 judgment, which had sent many judges home. They have submitted that they were qualified to be appointed as judges of the high court in accordance with the requirements of Article 193(2)of the 1973 Constitution and were offered to serve as ad hoc judges in consequence of consultation required under the Constitution. They accepted the offer and took oath on March 3, 2009. They never took oath under any PCO and continued performing the functions as judges of the high court till the passing of the July 31 judgment. They have prayed for the review of impugned judgement of the Supreme Court because, they argued, it had been passed in violation of the universally accepted principle of audi altram paltrem and they had been condemned unheard. The apex court in its judgment had held that Justice Abdul Hameed Dogar took oath alongwith four judges in violation of the judgement of seven member bench headed by de jure Chief Justice Iftikhar Muhammad Chaudhry. Dogar took oath as Chief Justice of Pakistan although the office was not vacant. The disobedience of order of seven member bench had made the appointment of Dogar as Chief Justice and all the appointments with his consultation unconstitutional. The former ad hoc judges have submitted that the Supreme Court had applied the July 31, 2009 judegment with retrospective effect from November 3, 2007. The 14-member Supreme Court had, however, not applied the sanction to the judges who had taken oath under the PC0 in 1999 and office order of January 25, 2009. The July 31 judgment was also inconsistent with the principles laid down in Malik Asad Alis case wherein it had been held that the Chief Justice was also bound by the judgment and former Chief Justice Sajjad Ali Shah had been removed from office on the same ground, they said. If taking oath under the PCO was declared illegal and the principle was applied with retrospective effect on those who took oath on November 3, 2007 it would also apply on the members of the bench that gave the July 31 judgement, they took plea. They further contended that the impugned judgement of July 31 was not sustainable under the Code of Conduct laid down by the Supreme Judicial Council under Article 209 of the Constitution which stated that a judge must decline resolutely to act in a case involving his own interest. 'The interest of the members of the bench was involved in giving the July 31 judgment as they had declared their holding of office as Constitutional and lawful, they said. The judgment would thus fall in the category of self-serving judgement, they added. Declaration of promulgation of emergency and PCO as unlawful after it had been repealed on December 15,2007 as unconstitutional was a violation of the basic principle of law under which repealed laws were never made the subject of adjudication because the same had ceased to exist, they contended. The former ad hoc judges have contended that Justice Abdul Hamid Dogar held office of Chief Justice of Supreme Court till his retirement on March 24,2009. Some of the judges of Supreme Court who performed their duties under Dogar also sat on the SC bench that gave the July 31 judgment could not have been a party to the finding that he was never the Chief Justice of Pakistan, they said. 'The present Chief Justice also accepted the stance of the govt that Dogar was Chief Justice until his retirement as he assumed his office after his retirement. They further said that the appointment of the petitioners had, however, been set at naught only on account of the fact that they were appointed in consultation with him. They submitted that Justice Syed Zahid Hussain who took oath under the PCO and was appointed as Chief Justice of Lahore High Court in consultation with the then Chief Justice Dogar continued to act as such even after assumption of office by Chief Justice Iftikhar Muhammad Chaudhry. He had been elevated as judge of the Supreme Court and saved from the mischief of July 31 judgement without any rational reason, they said. 'Similarly the judges case cropped up on the appointment of the present Chief Justice of Federal Shariat court as judge of the Sindh High Court in 2007. He was appointed Federal Law Secretary with concurrence of Justice Dogar and Chief Justice of Federal Shariat Court with the concurrence of Justice Iftikhar Muhammad Chaudhry. They pointed out that Justice Sardar Muhammad Raza Khan, Justice Tassadaq Hussain Jilani, Justice Shakirullah Jan , Justice Nasirul Mulk and Justice Sarmad Jalal Usmani, who were members of 14-member Supreme Court Full Bench that gave July 31 judgement had been been appointed with the consultation of the then Chief Justice Abdul Hameed Dogar. Similarly four judges of Lahore High Court, 8 judges of Sindh High Court and three judges of Peshawar High Court had been appointed in consultation with Dogar but had been given protection by July 31 judgement, they added. They said that the July 31 judgement had made exception by declaring the oath of office administered to President Asif Ali Zardari by Dogar as an administrative act of the Chief Justice. If administration of oath by Dogar to the President was an administrative act how could such administration of oath to judges by him be treated unconstitutional, they contended.

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