SC says Article 190 is mandatory

SC says Article 190 is mandatory

Those not implementing SC decisions can be punished; SC issues detailed judgment dismissing review petitions in PCO judges case

Wednesday, February 10, 2010
By Tariq Butt & Usman Manzoor

ISLAMABAD: “Article 190 of the Constitution is a mandatory provision under which there is no alternative for the executive but to act in aid of the Supreme Court. Persons identified as responsible for non-implementation of the judgment can be punished by the Supreme Court for contempt for disobedience of its judgment,” the Supreme Court ruled in its detailed judgment, which disallowed several review petitions filed against its July 31, 2009 judgment in the PCO judges case.

The short order in the case disallowing the petitions was issued on Oct 13, 2009 by the 14-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry, which dismissed the review petitions filed by some PCO judges against the July 31 ruling. The detailed judgment has now been posted on the website of the Supreme Court.

The review petitions, which were disallowed, were filed by former Justices Khurshid Anwar Bhinder, Hasnat Ahmed Khan, Zafar Iqbal Chaudhry, Syed Shabbar Raza Rizvi and others including Syed Sajjad Hussain Shah, Mrs Yasmin Abbasi, Muhammad Ahsan Bhoon, Anwar-ul-Haq Pannu, Syed Hamid Ali Shah, Barrister Jahanzeb Rahim and Syed Zulfiqar Ali Bokhari. It is worth mentioning that not all the PCO and Dogar recommended judges had filed the review petitions.

Justice Javed Iqbal wrote the main judgment (21,127 words) while Justice Sardar Muhammad Raza Khan dissented with it and came out with his own note (6,888 words). Justice Ch Ijaz Ahmad and Justice Rehmat Hussain Jafferi consented to the judgment but also wrote their additional notes containing 338 words and 1,123 words respectively.

The Supreme Court ruled that persons identified as responsible for non-implementation of a judgment can be punished by the Supreme Court for contempt for disobedience of its verdict and it is mandatory that all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court under Article 190 of the Constitution. 

Although the review petition pertains to the issue of judges’ appointment during Dogar’s tenure, this detailed judgment has an important relevance to the apex court’s ruling on NRO that still remains unimplemented. 

If read in that context, the SC interpretation of Article 190 in this judgment would be applicable in the NRO decision which despite the lapse of several weeks is yet to be implemented by the executive.

Besides other directions in the NRO case the SC had unambiguously ordered the executive to immediately write to the Swiss authorities to revive the cases and other investigations as they stood on October 4, 2007. According to this detailed judgment the Supreme Court can punish those who are not implementing the decision on NRO.

While writing the detailed judgment of review petition by PCO judges, Justice Javed Iqbal penned down, “According to Mr Wasim Sajjad, learned Sr ASC, pursuant to acceptance of C.P. No.8 of 2009 the petitioners have been declared not to be Judges and soon after the judgment impugned the petitioners in Civil Miscellaneous Application No.2745 of 2009 and the other persons falling in the second category were removed from their offices by means of Notification No. F.12(4)/2007-A.II-(Vol.II)(d) dated 2.8.2009.” 

“We have considered this argument advanced by learned counsel but find little force to commend it. Firstly, it is to be noted that the removal of the petitioners from the office being occupied by them was a direct consequence of the finding that the actions of General (Retd) Pervez Musharraf taken on 3.11.2007 were void ab initio and secondly that the Notifications of those petitioners who were appointed Judges of the High Courts between 3.11.2007 and 23.3.2009 had not been issued after “consultation” with the Chief Justice of Pakistan as mandated by Article 193 of the Constitution.” 

“Where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this article and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictam”.

Referring to its July 31 verdict, the Supreme Court said it was the first instance of the apex court stating in a categorical, loud and abundantly clear manner that military interventions are illegal and will hardly find any colluder in future within the judiciary, another important detailed judgment says.

In fact, the judgment impugned has been considered in Pakistan as well as at global level as a triumph of democratic principles and a stinging negation of the dictatorship, the detailed decision said.

It said the July 31 verdict provides much needed redress as it will render considerable help in blocking the way of adventurers and dictators to creep in easily by taking supra-constitutional steps endorsed, supported and upheld under the garb of the principle of necessity in the past which will never happen again.

“Had our superior judiciary followed the path of non-PCO judges, the course of Pakistan’s political and judicial history would have been different. The verdict has been appreciated by all segments of society for being issue-oriented rather than individual-specific and therefore, no individual including the petitioners” [PCO judges] “should be aggrieved. The judgment impugned would encourage future justices to take the firm stand against usurpers. The judgment impugned being in the supreme national interest hardly needs any justification for review.”

The decision said that the July 31 verdict has the status of conclusiveness and finality and no person can be allowed to challenge it merely for the reason that he was not a party in the case and had not been heard.

Another important observation of the apex court was that in the light of precedents, there remains no doubt that none other than the Chief Justice of Pakistan (CJP and not even an acting CJP, who is a constitutional functionary), can be the consultee in terms of the constitutional provision.

According to the verdict, the most which has been urged by persons notified as judges of this Supreme Court or of the high courts between Nov 11, 2007 and March 23, 2009 on the basis of “consultation” with Abdul Hameed Dogar, purporting to act as CJP, is that he was the de facto chief justice and, therefore, consultation with him was sufficient to fulfil the requirement of Article 193 of the Constitution. It said that this contention is misconceived and wholly without merit. “We need go no further than the case titled Al-Jehad Trust Vs. Federation of Pakistan and others (PLD 1996 SC 324) to debunk the argument.