Contempt proceedings against judges could go ahead: SC

ISLAMABAD: The Supreme Court on Wednesday announced its verdict on a law point whether it could initiate contempt proceedings against the judges who took oath under the Provisional Constitution Order (PCO), and whether it could issue contempt notices to generals involved in promulgation of November 3, 2007 emergency in the country in defiance of a seven-member apex court bench's restraining order.

The court rejected the plea and fixed 21st February as the date for hearing to indict the judges.

The court last week reserved its decision. The top court also rejected the plea on employing the assistance of the Pakistan Bar Council (PBC) and presidents of the provincial bar associations in contempt proceedings against the PCO judges.

A four-member larger bench, comprising Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S Khawaja, Justice Khilji Arif Hussain and Justice Tariq Parvez, heard contempt of court cases against the superior court judges who had taken oath under the PCO in violation of a seven-member bench's restraining order of Nov 3, 2007.

The judges who face contempt of court proceeding include; Justice (R) Iftikhar Hussain Chaudhry, Justice Khurshid Anwar Bhinder, Justice Hamid Ali Shah, Justice Zafar Iqbal Chaudhry, Justice Hasnat Ahmed Khan, Justice Syed Shabbar Raza Rizvi, Justice Yasmin Abbasey, Justice Jehan Zaib Rahim, Justice (R) Abdul Hameed Dogar, Justice Sayed Zahid Hussain, Justice Syed Sajjad Hussain Shah.

The Supreme Court in its order said that the proceeding against the judges who took oath under the PCO could go ahead.

It said: "i) In the facts and circumstances of these matters, the Constitution and law does not prohibit proceedings under Article 204 of the Constitution against the respondents even though they may be Judges of the Supreme Court and the High Courts. We hold that they are not immune from proceedings under Article 204 and the Contempt of Court Ordinance V 2003, for committing contempt of this Court.

ii) Having considered the submissions of learned counsel as to the propriety of initiating contempt proceedings against the respondents and being fully conscious of the status of the respondents, we hold that in the circumstances of these matters, propriety requires that proceedings should be taken against the respondents and they, with the exception of Mr. Zafar Iqbal Chaudhry and Khurshid Anwar Bhindar, be put to trial in accordance with the aforesaid law.

iii) Having considered the record, facts and circumstances and replies in these matters and after due consideration of the arguments advanced on behalf of respondents, we find that there is sufficient material available before us to justify charging the respondents (other than Mr. Khurshid Anwar Bhinder and Mr. Zafar Iqbal Chaudhry,) for committing contempt of the Supreme Court on account of their disobedience of the order dated 3.11.2007 passed by a seven member Bench of this Court."

In the matter of Justice Hasnat Ahmad Khan and Justice Syed Shabbar Raza Rizvi the court issued a separate order.

The order said: "2. It has been asserted by learned counsel representing the said applicants/respondents Mr. Shabbar Raza Rizvi & Mr. Hasnat Ahmad Khan that notices be issued to other persons mentioned in paras (i) and (iii) of the order dated 3.11.2007 including the then COAS and President General Pervez Musharraf and the then Prime Minister Mr. Shaukat Aziz because these persons are equally liable for disobeying the order passed by seven-member Bench of this Court on 3.11.2007.

We have considered the submissions of learned counsel and have also noted the contents of these applications and prima facie find substance in the same. We also find that the contempt alleged against these persons is primarily consequent to issuance of the three instruments viz. Proclamation of Emergency, PCO and Oath of Office (Judges) Order, 2007 and thereby launching an assault on the independence of the Judiciary. It appears, prima facie, that these instruments were issued prior to the passing of the order dated 3.11.2007 and not in disobedience of the same. Therefore, the case for contempt of Court these persons will have to answer is materially different from the charge to be faced by the respondents which arises on account of their disobedience of the order passed by the seven member Bench of this Court on 3.11.2007. The proceedings therefore, against the aforesaid persons may proceed independently and on their own facts, either before this Bench or before some other Bench as may be determined by the Hon'ble Chief Justice of Pakistan. It is, in our opinion, quite unnecessary to link or club the proceedings against the respondents with those which may be taken against the above named persons.

3. The office is accordingly directed to place copies of this order and these applications before the Hon'ble Chief Justice of Pakistan for necessary orders."