Proclamation of emergency: CJ hints at revisiting earlier judgement

[Naveed Yaseen]

QAMAR UZ ZAMAN
ISLAMABAD (May 29 2009): Chief Justice Iftikhar Muhammad Chaudhry on Thursday hinted at revisiting an earlier judgement of the apex court which had legalised November 3, 2007 proclamation of emergency and provisional constitution order. The CJ observed this while hearing a case regarding non-confirmation of two judges at Sindh High Court (SHC).

A three-member bench of the apex court comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Raja Fayyaz Ahmed and Justice Chaudhry Ijaz Ahmed directed to club all the petitions pending against the non confirmation of Sindh High Court judges.

The bench also indicated to constitute a larger bench in order to address the issue and observed, "If needed a larger bench can re-examine Tikka Mohammad Iqbal case". Sindh High Court Bar Association (SHCBA) had filed a petition through its president Rasheed A. Rizvi against non confirmation of two Sindh High Court judges namely Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar.

Both of the judges were appointed Additional Judges of the SHC on September 17, 2007 for six months which was later extended. After evaluating their performance by the SHC chief justice suggested for the regularisation of six judges including the Justices Sherwani and Kalwar.

The petition pleaded that the judges of superior court were removed unlawfully in the most unconstitutional manner but their ouster from the office were justified by the SC by validating November-3 emergency in the Tikka Mohammad Iqbal case which itself was contrary to the rules laid down by a 12-member bench in the Zafar Ali Shah case.

The decision in the Tikka Mohammad Iqbal case was without any legal sanctity, it added. The petition alleged, Secretary Law Agha Rafiq, with mala fide intent, wrote back to the Sindh governor that the term of these two judges had expired on March 3, 2009 instead of August 25, 2010.

The former chief justice also wrote a letter to the SHC chief justice asking to stop giving judicial work to the two judges the petition said adding the former chief justice could not act as the chief justice and therefore was not a proper consultee.

The petitioner had sought a declaration from the apex court that both the judges were still continuing in the office as judges of the SHC as Additional Judges till August 25, 2010 and that their term of appointment has not expired as opined by former chief justice Dogar. The petitioner also requested to direct the SHC registrar to assign regular judicial functions and duties as high court judges to the two removed judges.

The petitioner also raised a question asking in the presence of the chief justice, could Justice Abdul Hameed Dogar occupying the office of the chief justice under an unconstitutional PCO had made recommendations of appointment or removal of any additional judge of the high court. The court directed the Attorney General to file a reply and adjourned the matter for two weeks.

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