PCO Judges case

Last updated

Constitution Petition No. 8 & 9 of 2009
Emblem of the Supreme Court of Pakistan.svg
Court Supreme Court of Pakistan
Decided31 July 2009
Citation(s)(Supreme Court of Pakistan31 July 2009).Text
Case opinions
All steps taken in the 2007 Pakistani state of emergency are unconstitutional, going against the restraining order imposed by the Supreme Court immediately after the state of emergency was declared.
Court membership
Judge(s) sittingChief Justice Iftikhar Muhammad Chaudhry
Javed Iqbal
Sardar Muhammad Raza Khan
Khalil-ur-Rehman Ramday
Mian Shakirullah Jan
Tassaduq Hussain Jillani
Nasir-ul-Mulk
Raja Fayyaz Ahmed
Chaudhry Ijaz Ahmed
Ghulam Rabbani
Sarmad Jalal Osmany
Muhammad Sair Ali
Mahmood Akhtar Shahid Siddiqui
Jawwad S. Khawaja

The Provisional Constitutional Order Judges case (shortened to PCO Judges case), refers to cases heard and decided by the Pakistan Supreme Court pertaining to the High Court and Supreme Court judges who took their oath of offices under the Provisional Constitutional Order in 2007. On 3 November 2007, then-President Pervez Musharraf declared a Provisional Constitutional Order, which declared a state of emergency and suspends the Constitution of Pakistan. Under this emergency law, all High court judges, including the Supreme Court justices, were asked to take oath under this Provisional Constitutional Order. Those who didn't were placed under effective house arrest. A seven-member bench issued a restraining order on the same day, barring the government from implementing emergency rule and urging other government officials to not help do so. [1]

Contents

The Provisional Constitutional Order Judges case has been examining the constitutionality and legality of the steps taken by Musharraf in declaring a state of emergency, and considering contempt of court charges against justices who took oath under the Provisional Constitutional Order in violation of the restraining order.

Background

On 3 November 2007, Musharraf declared a Provisional Constitutional Order, which suspended the Constitution of Pakistan and declared a state of emergency. [2] High court judges were asked to take oath under the new Provisional Court Order. Approximately 100 judges refused to take this oath, and were placed under house arrest. [3] Chief Justice Iftikhar Chaudhry was one of these judges. He was dismissed and replaced by Chief Justice Dogar. On 3 November 2007, a restraining order was issued by a seven-member bench of the Supreme Court to bar the government from implementing emergency rule. [1] In a statement smuggled out of Chaudhry's residence, Chaudry said: [4]

The whole of the judiciary of Pakistan is struggling for the supremacy of the constitution. The Provisional Constitutional Order (PCO) issued by General Musharraf has been declared a step to interfere in the independence of the judiciary, and therefore a judicial 'restraining' order against it had been issued by a seven-member bench of the Supreme Court, which has to be respected and enforced.

Any action by the government after the passing of this order is illegal, including the detention of lawyers and members of civil society whose only sin is that they opposed the emergency and the PCO. Up to 13 justices of the Supreme Court of Pakistan have refused to take an oath under the PCO. Yesterday morning,the judges of the Supreme Court were stopped as they sought to carry out their judicial duty, including the hearing of a case by the full court regarding the PCO, about which the restraining order had been passed.

This order has been passed and those who defy it, defy the constitution. I and all the judges of the Supreme Court were exercising our jurisdiction in accordance with the law and constitution and are determined to do so in the future.

Dogar almost immediately declared void Chaudry's ruling that the emergency state and Provisional Constitutional Order were unconstitutional. [4]

Case

July 2009

In July 2009, the then-Lahore High Court Chief Justice Khawaja Muhammad Sharif referred to the Supreme Judicial Council of Pakistan a list of names of justices who took oath under the 2007 Provisional Constitutional Order, stating that doing so went against the restraining order issued on 3 November 2007. [5] By taking this oath, the judges swore to abide by the 2007 Proclamation of Emergency, the 2007 Provisional Constitutional Order No. 1, and the Code of Conduct established by the Supreme Judicial Council. [6] This referral caused the Supreme Court to first decide it could begin contempt of court charges against many of the higher court justices who took the oath. It also caused President Asif Ali Zardari to issue orders declaring that the 76 judges that had taken the oath would no longer hold office until the decision on 31 July 2009. These judges were spread throughout the Pakistan Supreme Court, Lahore High Court, Sindh High Court, Peshawar High Court, and the Islamabad High Court. [7]

After 31 July 2009 verdict

Justices Muhammad Ahsan Bhoon and Anwaarul Haq Pannun filed petitions to review the 31 July 2009 verdict. The two justices' complaints included:

After the 31 July decision, contempt of court notices were issued to the judges who took the Provisional Constitutional Order oath. On 9 November 2010, a four-member Supreme Court bench took up the contempt of court charges against the nine justices who have not apologised for taking the oath. [9] Although these judges petitioned the Supreme Court, the Supreme Court rejected the petitions and will go on with the contempt of court proceedings. [10] Objections to the composition of the bench were raised by Justice Abdul Baist against the presence of Justices Sair Ali, Tariq Pervez, and Shahid Siddiqui. Following these objections, Ali refused to be part of the bench and requested Chaudhry create a new bench to hear the case. [11] On 11 December 2010, Dogar also challenged the bench presiding over the case, on the grounds that two of the judges making up the bench had been appointed per his recommendation. [12] However, this challenge was rejected. [13] On 3 March 2011, Dogar and Zahid Hussain apologised to the Supreme Court. Chaudhry accepted their apologies. [14] The Supreme Court has asked Attorney General Maulvi Anwar ul Haq to provide a statement on behalf of the government detailing the legal status of the judges who took the oath. [15]

The Supreme Court has supposedly also issued contempt of court notices to Musharraf, former premier Shaukat Aziz, the former corps commanders, and the current Chief of Army Staff Ashfaq Parvez Kayani. [16] However, this has been denied by Supreme Court Bar Association of Pakistan president Asma Jahangir. She blames this mistake on the media for misinterpreting the Court's decision. [17]

Decisions

31 July 2009

On 31 July 2009, after hearing constitutional petitions concerning PCO judges, the appointment of judges, and the steps taken in declaring the 2007 Pakistani state of emergency, the Pakistan Supreme Court decided the declaration of emergency rule by Musharraf to be unconstitutional under Article 279 of the Constitution of Pakistan. The Supreme Court also declared the steps taken in declaring the state of emergency to be null and void, and specifically stated that the removal of judges was unconstitutional and illegal. [18] This included the removal from office of the Chaudhry and other justices. The appointment of Dogar and of all justices between 3 November 2007 and 24 March 2008 was deemed unconstitutional. Musharraf's increase to the number of justices, accomplished through a finance bill, was declared unconstitutional, and the number of justices was set at seventeen. The verdict did not change the legality of the new government, nor that of the presidential oath taken by Zardari. The verdict also referred the issue of the Provisional Constitutional Order judges to the Supreme Judicial Council. [19]

Reaction

31 July 2009 verdict

The 31 July 2009 verdict was warmly received outside of the Supreme Court and across Pakistan. Candy was distributed after the announcement, and people were chanting slogans in support of the decision. [19] The verdict was also welcomed by the spokesperson to Zardari, Farhatullah Babar, who said that "The Supreme Court short order today declaring the November 3, 2007 actions of General Pervez Musharraf as unconstitutional is a triumph of the democratic principles, a stinging negation of dictatorship and is most welcome." [20] Jahangir, president of the Supreme Court Bar Association, spoke out strongly against the issuance of contempt of court notices to the judges, saying that the Supreme Judicial Council, not the Supreme Court, should not be hearing the case. [17] Jahangir was subsequently asked by the Supreme Court Bar Association to keep from issuing statements on the matter, and to not suggest that her personal opinion reflected the opinion of the Supreme Court Bar Association. [21]

See also

Related Research Articles

<span class="mw-page-title-main">Supreme Court of Pakistan</span> Highest authority court of Pakistan

The Supreme Court of Pakistan is the supreme judicial authority of Pakistan and the apex court in the judicial hierarchy of the Islamic Republic of Pakistan, under the Constitution of Pakistan. It is the final court of appeal and has the final decision in all legal matters pertaining to common law which excludes legal authority over personal laws. It also has the power of judicial review. The Chief Justice of Pakistan is the Head of the Supreme Court, which consists of a maximum of 17 judges.

<span class="mw-page-title-main">Iftikhar Muhammad Chaudhry</span> Pakistani judge

Iftikhar Muhammad Chaudhry is a Pakistani jurist who served as the 20th Chief Justice of Pakistan over three non-consecutive terms from 29 June 2005 to 11 December 2013.

<span class="mw-page-title-main">1999 Pakistani coup d'état</span> 1999 military takeover of government in Pakistan

The 1999 military takeover in Pakistan was a bloodless coup d'état initiated by the military staff at the Joint Staff HQ working under Chairman of the Joint Chiefs of Staff Committee General Pervez Musharraf. The instigators seized control of the civilian government of the publicly elected Prime Minister Nawaz Sharif on 12 October 1999. On 14 October, General Musharraf, acting as the country's Chief Executive, issued a controversial provisional order that suspended the Constitution of Pakistan.

<span class="mw-page-title-main">Javed Iqbal (judge, born 1946)</span> Former Chairman of the National Accountability Bureau

Javed Iqbal ; is the retired chairman of the National Accountability Bureau (NAB) of Pakistan, in office from 11 October 2017 to 3 June 2022. He is also a retired Senior Justice of the Supreme Court of Pakistan.

<span class="mw-page-title-main">2007 Pakistani state of emergency</span> 2007 political crisis in Pakistan

A state of emergency was declared by President of Pakistan Pervez Musharraf on 3 November 2007 which lasted until 15 December 2007, during which the Constitution of Pakistan of was suspended. When the state of emergency was declared, Musharraf controversially held both positions of President and Chief of Army Staff. He later resigned as army chief 25 days into the emergency on 28 November. The state of emergency and its responses are generally attributed to the controversies surrounding the re-election of Musharraf during the presidential election on 6 October 2007, including his holding of both offices of President and Chief of Army Staff at the time.

<span class="mw-page-title-main">Abdul Hameed Dogar</span> Pakistani jurist

Abdul Hameed Dogar is a Pakistani jurist who served as the former Justice of Sindh High Court, before being appointed Chief Justice of Pakistan by President Pervez Musharraf, after he dismissed the superior judiciary and declared emergency rule in 2007.

The Provisional Constitutional Order, popularly known as PCO, is an emergency and extra-constitutional order that suspends either wholly or partially the Constitution of Pakistan — the supreme law of the land.

<span class="mw-page-title-main">Muhammad Aslam (judge)</span> Pakistani judge (1947–2020)

Sardar Muhammad Aslam was a Pakistani jurist, lawyer, and member justice of the Lahore High Court. He was also a justice of the Supreme Court of Pakistan and a former chief justice of the Islamabad High Court. However, as result of Constitution Petition No. 09 of 2009 and Constitution Petition No. 08 of 2009 in the Supreme Court of Pakistan, on 31 July 2009, the court held his elevation to Supreme Court as unconstitutional, void ab initio and of no legal effect. In addition in the same decision, the institution of Islamabad High Court was held as unconstitutional and of no legal effect.

<span class="mw-page-title-main">Lawyers' Movement</span> 2007 mass protest movement in Pakistan

The Lawyers' Movement, also known as the Movement for the Restoration of Judiciary or the Black Coat Protests, was the popular mass protest movement initiated by the lawyers of Pakistan in response to the former president and army chief Pervez Musharraf's actions of 9 March 2007 when he unconstitutionally suspended Iftikhar Muhammad Chaudhry as the chief justice of Pakistan's Supreme Court. Following the suspension of the chief justice, the Supreme Court Bar Association (SCBA) declared the judge's removal as an "assault on the independence of judiciary" and were backed by several political parties.

<span class="mw-page-title-main">Bilal Khan (judge)</span>

Muhammad Bilal Khan was a Justice in the Lahore High Court in Pakistan.

<span class="mw-page-title-main">Sardar Muhammad Raza</span>

Sardar Muhammad Raza was Chief Election Commissioner from 6 December 2014 to 5 December 2019. who previously served as retired judge of the Supreme Court of Pakistan and as Chief Justice of the Peshawar High Court. Khan was born in the Namli Maira village in the district of Abbottabad on 10 February 1945.

<span class="mw-page-title-main">Mian Shakirullah Jan</span>

Justice Mian Sakirullah Jan is a former justice in Supreme Court of Pakistan and a former Chief Justice of Peshawar High Court and is currently serving as the Chairman of the National Industrial Relations Commission.

<span class="mw-page-title-main">Muhammad Javed Buttar</span>

Moin ud Din Javed Buttar was a former justice of the Supreme Court of Pakistan, retired on medical grounds.

<span class="mw-page-title-main">Tassaduq Hussain Jillani</span> Pakistani judge

Tassaduq Hussain Jillani is a Pakistani judge who served as the 21st Chief Justice of Pakistan from 2013 to 2014. He previously served as a Justice of the Supreme Court from 2004, after being nominated Justice of the Lahore High Court by Prime Minister Benazir Bhutto in 1994.

<span class="mw-page-title-main">Falak Sher (justice)</span>

Falak Sher is a former justice of Supreme Court of Pakistan and a former Chief Justice of Lahore High Court.

<span class="mw-page-title-main">Muhammad Nawaz Abbasi</span> Pakistani former justice

Mohammad Nawaz Abbasi is former justice of the Supreme Court of Pakistan and a former justice of Lahore High Court.

<span class="mw-page-title-main">History of the Supreme Court of Pakistan</span>

The History of the Supreme Court of Pakistan, organised by the Chief Justice of Pakistan, follows from its constitutional establishment in 1947 till its recent events. The Supreme Court of Pakistan is the highest appellate court of the country and court of last resort— the final arbiter of the law and the Constitution.

<span class="mw-page-title-main">Asif Saeed Khosa</span> 26th Chief Justice of Pakistan

Asif Saeed Khan Khosa is a Pakistani jurist who served as the 26th Chief Justice of Pakistan from 18 January 2019 to 20 December 2019. He joined the Supreme Court as a judge on 18 February 2010 and prior to that served as judge of the Lahore High Court.

The Federation of Pakistan v. General (R) Pervez Musharraf, informally known as the Musharraf high treason case, was a court case in which former Pakistani president and military ruler Pervez Musharraf was tried for high treason stemming from his actions on 3 November 2007 when he subverted and suspended the Constitution of Pakistan, sacking fifteen Supreme Court judges and fifty-six judges of the provincial High Courts while putting the then Chief Justice of Pakistan under house arrest. It was the first time in Pakistan's history that a former military ruler faced a trial for treason.

References

  1. 1 2 "Pakistan: End Emergency, Restore Constitution". Scoop World. 6 November 2007. Retrieved 26 March 2011.
  2. ↑ "Pakistan under martial law". CNN. 4 November 2007. Archived from the original on 28 November 2011. Retrieved 24 March 2011.
  3. ↑ Kronstadt, K. Alan (3 January 2008). "Pakistan's Political Crises". Congressional Research Service. Retrieved 26 March 2011.
  4. 1 2 Jansen, Jaime (6 November 2007). "Dismissed Pakistan CJ summons lawyers to 'stand up for constitution'". Jurist. Retrieved 25 March 2011.
  5. ↑ "LHC CJ refers 12 PCO judges' case to SJC". Daily Times. 2 August 2009. Retrieved 24 March 2011.
  6. ↑ "Oath of Office (Judges) Order, 2007". Pakistani.org. Retrieved 24 March 2011.
  7. ↑ "President Asif Zardari Restricts 76 PCO Judges From Duties". Pak Point. 3 August 2009. Retrieved 25 March 2011.
  8. ↑ "Two former LHC judges move SC for review of July 31 verdict". The Daily Times. 29 August 2009. Retrieved 25 March 2011.
  9. ↑ "SC takes up PCO judges' case today". Daily Times. 29 November 2010. Retrieved 25 March 2011.
  10. ↑ "SC summons nine PCO judges on Feb 21". DAWN Media Group. 2 February 2011. Retrieved 25 March 2011.
  11. ↑ Ahmed, Afraz (6 December 2010). "PCO Judges case: SC bench stands dissolved". AAJ News. Retrieved 25 March 2011.
  12. ↑ "Pak Supreme Court dismisses PCO judges case objections". Oneindia News. 13 December 2010. Retrieved 25 March 2011.
  13. ↑ "PCO judges case: SC rejects Dogar's plea against bench". The News International. 13 January 2011. Retrieved 25 March 2011.
  14. ↑ "PCO judges apologise for taking oaths, CJP accepts apologies". The Express Tribune. 3 March 2011. Retrieved 25 March 2011.
  15. ↑ "SC seeks govt's version on legal status of PCO judges". The News International. 22 March 2011. Retrieved 25 March 2011.
  16. ↑ "SC charges PCO judges with contempt". Awaaz. 2 February 2011. Retrieved 25 March 2011.
  17. 1 2 Tanveer, Rana (3 February 2011). "PCO judges: Asma unhappy with apex court's decision". The Express Tribune. Retrieved 27 March 2011.
  18. ↑ "Court: Musharraf's 2007 rule unconstitutional". China Daily. 31 July 2009. Archived from the original on 16 October 2012. Retrieved 24 March 2011.
  19. 1 2 Najam, Adil (31 July 2009). "Supreme Court Declares Musharraf's 3 Nov. Emergency Illegal: What Does That Mean?". All Things Pakistan. Retrieved 25 March 2011.
  20. ↑ "Presidency welcomes SC verdict". Geo Television Network. 31 July 2009. Archived from the original on 3 August 2009. Retrieved 25 March 2011.
  21. ↑ "SCBA hails SC verdict on PCO judges". Pakistan Observer. 4 February 2011. Retrieved 27 March 2011.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.