Judicial discontent

The Supreme Court (SC) of Pakistan has decided to proceed against sitting (but non-functioning) judges on contempt of court charges and summoned them to appear in court “in person or through their counsels to enter their plea on the charges framed against them” on February 21. The non-functioning judges are accused of taking oath under Musharraf’s (now annulled) Provisional Constitution Order (PCO) despite a restraining order by a seven-member SC bench after he imposed an emergency on November 3, 2007. The SC bench hearing the contempt case adjudged that the charges against Justice Zafar Iqbal Chaudhry and Justice Khurshid Anwar Bhindar do not stand “since they were not the judges of the Lahore High Court on November 3, 2007 or at any later point in time, thus they did not violate the November 3 order”. It is interesting to note that these judges are not being tried for taking an oath under the PCO as such but because they violated the order of the seven-member bench of the apex court. Perhaps the reason behind confining the issue to the violation of this order rather than taking up the status of a PCO oath per se is that many serving judges have themselves taken oath under a previous PCO when General (retd) Musharraf came to power in 1999.

In our entire judicial history, no sitting judge has been charged with contempt of court. It is unprecedented that brother judges are not just charged but there is an insistence by the apex court on passing a verdict on the issue. Even though the charge of contempt meets the provisions of Article 204 and the Contempt of the Court Ordinance, 2003, this does not bode well for the judiciary and will end up weakening it, as pointed out by Supreme Court Bar Association (SCBA) President Asma Jahangir. She said: “It was better to send these judges home or send references against them to the Supreme Judicial Council [SJC] because they were dysfunctional but still sitting judges.”

On the other hand, Chief Justice Iftikhar Chaudhry will decide whether to issue notices to General (retd) Musharraf, former Prime Minister Shaukat Aziz, the then corps commanders and other military/civil authorities as the emergency had been imposed before the November 3 order by the apex court was passed. This will be a test for the superior judiciary given the fact that the real culprits were those in the Musharraf regime and not just the members of the superior judiciary who violated the November 3 order.

In the minds of many judicial luminaries, it will prove deleterious for the superior judiciary’s respect and dignity to try sitting judges for contempt of court.

(my editorial in Daily Times)

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