NADEEM MALIK: Supreme Court Order on Judges Restoration Controversy

Supreme Court Order on Judges Restoration Controversy

As per reports telecast tonight on several TV Channels including AAJ, GEO & ARY, alleging that the Government is considering to withdraw the notification/executive order dated 16.03.2009 of restoration of the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan and Chief Justices/Judges of High Courts. Some newspapers have already reported this issue as well. Earlier on, few months ago, a similar statement was made by one of the high constitutional office holders in the Parliament.

2. As the news item was flashed by other TV channels, some channels have also telecast denial today (14.10.2010) from the Government, saying that there is no truth behind the said news.

3. It may be clarified that the issue of restoration of Judges through notification has already been conclusively settled by the Supreme Court of Pakistan in its judgment dated 31.07.2009 in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), relevant paragraphs whereof are reproduced below: -

"21.      The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him like-wise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President's Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President's Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect.

22.       As a consequence thereof: -

i)          the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;"

4. It may be stated that the issue of appointment or removal of Judges is clearly prescribed by the Constitution of Pakistan, which has been elaborated through successive verdicts of the Supreme Court. The Supreme Court has held time and again that a Judge of the superior judiciary may not be removed except on the grounds and as per procedure laid down in Article 209 of the Constitution.

5. In view of the facts stated above, the Hon'ble Chief Justice of Pakistan, on a note moved by the Registrar, has ordered registration of the matter as Civil Miscellaneous Application and its fixation before a 17 – Member Bench on 15.10.2010. Notice have been issued to the Attorney General for Pakistan.

NADEEM MALIK

Islamabad Tonight 14th October 2010

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Watch Islamabad Tonight 14th October 2010 | Imran Khan Chairman PTI and Khawaja M. Asif PML-N in fresh episode of Islamabad Tonight in AAJ Tv & discusses current issue with Nadeem Malik.