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CJ justifies oath under PCO

ISLAMABAD: Chief Justice of Supreme Court Mr Justice Irshad Hasan Khan on Thursday said the Judges could have eliminated the judicial system by tendering resignations but they took oath under Provisional Constitution Order (PCO) to have the people from hardships.

He said it is not the only job of the court to establish supremacy of the law, but it has also to see, if the situation is worsening, how to prevent deterioration.

The Chief Justice, who is heading the bench hearing identical petitions challenging the proclamation of emergency and promulgation of Provisional Constituion Order No. 1, made these remarks when counsel for Pakistan Muslim League (Nawaz Group) Khalid Anwer argued that the court should fulfil its responsibility by interpreting PCO for the supremacy of the Constitution and the law.

Khalid Anwer said the court should not render such a judgment that historians of the future held it responsible and an unconstitutional government uses the judicial verdict to sanctify its actions. He recalled that late president General Ziaul Haq used to justify every action taken by him by saying that he has been authorised to do so by the Court.

Advancing his arguments, he said the High Court judges had taken oath under the Constitution and therefore they could not be removed.

Expressing full confidence in the Supreme Court, he said the judges of the apex court, despite taking oath under the PCO, can declare the Provisional Constitution Order No. 1 as unconstitutional.

He said he is confident that the court will decide the case on merit. The Chief Justice on this said that was why the court had started hearing without wasting time when the petitions questioning the military action were filed.

When Khalid Anwer referred to the Asma Jilani case, the Chief Justice observed that there is a difference between the present military action and the martial law of General Yahya Khan. He said the then president Ayub Khan had not given the right of imposing martial law to General Yahya Khan and that was why the court declared him as usurper and his martial law as unconstitutional. He said in the present case the Chief Executive has exercised his powers in consultation with his fellow commanders.

Khalid Anwer, however, insisted that the current military action was weaker than General Yahya's Martial Law as President Rafiq Tarar had not authorised General Pervez Musharraf to take the military action.

He read out the decision of court in the Asma Jilani case in which it was held that the right to hear cannot be taken away from the court through PCO.

Khalid Anwer said the judges of the Supreme Court hearing the case despite having taken oath under PCO have a duty to tell what the Constitution says. He said by doing so they will be fulfilling their obligation.

The Chief Justice said there is a maxim that the supremacy of the law has to be maintained even if the heavens were falling. He however said his ideology is that the court should see to it that the heavens do not fall.

He said the courts should not dispense justice which is not in accordance with the Constitution and the law.

He observed that it is not the job of the court to render judgments that are not implemented.

Khalid Anwer urged the court not to support any unconstitutional government.

He said that in principle the Supreme Court should not give any certificate to any government.

He contended that the mistake of 1977 should not be repeated, which delayed the holding of the elections from 90 days to 90 months.

Referring to the decision of Nusrat Bhutto case, Khalid Anwer said that at that time the court had ruled that since the chief martial law administrator has expressed commitment to hold the elections within 90 days, the court had to believe him.

The Chief Justice in his observation said that there was no barometer for judging intentions.

The Chief Justice also appreciated a bold statement from Anwer Khalid that judges took oath under PCO to save the institution.

Khalid Anwer argued that in terms of present emergency, the Constitution cannot be amended. He contended that the October 12 action was taken to restore the supremacy of the Constitutional rule not to Abrogate it.

Khalid Anwer said that since PCO claims to be in the nature of a constitutional law whereas Order No.1 of 2000 under which seven High Court judges were removed from office, is not an amendment of PCO. It, therefore, necessarily follows that there being a conflict between the PCO and Order No. 1 of 2000, which must yield to superior mandate of PCO.

Khalid Anwer will continue his arguments till March 14. He wanted to contine till the last working day before Eid, but the Chief Justice said that he cannot become a party to the misery of the people as lot of work has piled up and there are certain stay cases and everything was at a standstill due to this case.ÑPPI/APP