Taking stock of situation arising out of some real or perceived threats to judiciary, the Supreme Court on Friday directed 'all administrative and constitutional heads' to refrain from destabilising the judiciary.
A 17-member larger bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry, said this in its order passed after conducting hearing of the matter related to withdrawing the Chief Executive Order of March 16, 2009 about restoration of judges of superior judiciary that was highlighted by media on Thursday night, "we direct all the constitutional and State functionaries and administrative heads in the country to ensure that no action qua initiation of proceedings concerning withdrawal of the executive order (order of "restoration of Judges") dated 16.03.2009, status whereof has already been determined by this Court in its judgement in Sindh High Court Bar Association's case (supra), is taken, intentionally or otherwise, by any of the functionaries as noted herein-above, and all the constitutional and administrative heads/ functionaries are restrained/refrained from doing so."
The order was passed by the apex court after not receiving written response from Prime Minister Yousuf Raza Gilani in this regard. The "restraining order" was nothing short of a stern warning by the country's highest court, as it declared that dismissing any judge through an executive order will not only be unconstitutional, it will be in violation of the Supreme Court's judgement of July 31, 2009 and will amount to subversion of the Constitution, and an act of high treason.
The order said, " suffice to observe that the executive order passed was an acknowledgement of the factual and legal position, ie that the order passed by the then President was unconstitutional and void ab initio. If now the said order is attempted to be withdrawn, it will be tantamount to throttling one of the important pillars of the State, namely, the judiciary, thereby subverting the Constitution in terms of Article 6.
As has been noted herein-above, particularly in view of the fact that when matter has finally been clinched/decided in view of the judgement in Sindh High Court Bar Association's case (supra), no functionaries of the Government, including the head of the State or head of the Government or any of their other functionaries can take any steps for withdrawing the executive order/notification of restoration of Judges, which otherwise is non-existent in view of the above judgement."
The apex court in it order ruled that judges' restoration notification cannot be withdrawn by any constitutional organ of the country including president, prime minister and any such step, if at all taken, would be in violation of article 6 of constitution.
Following media reports that the government was contemplating to withdraw the 16 March 2009 notification of reinstatement of judges, including of the Chief Justice Iftikhar Muhammad Chaudhry, the court directed all constitutional and administrative heads to ensure that no ultra constitutional step would be taken against the judiciary.
The executive order of 16th March 2009, restoring the sacked judges, the court maintained, has lost its effectiveness after the July 31, 2009, verdict and heads of all constitutional organs must abide by the judgement. The 17-member bench of the apex court remarked that "neither the president nor the Prime Minister were authorised to withdraw the notification for restoration of judges".
At the outset of the proceeding, the court directed the AG to submit a statement with signature of the Prime Minister within an hour. But after the stipulated time, the AG came up pleading more time for the purpose, saying that the PM was busy and he had been unable to meet him.
Referring to non-submission of a written statement on part of head of government over the issue, Chief Justice Iftikhar observed that it clearly reflects the government and its constitutional head are reluctant to make a statement and buying time for one reason or the other. "The reluctance on part of the AG suggests that there is something fishy," observed Justice Asif Saeed Khosa.
The court directed the government "to hold a full scale inquiry to find out the basis for these reports that the executive order had been withdrawn". Though the government had earlier denied that any such plan was in the offing, it however, failed to reiterate the same stance in the court on Friday in writing.
The bench noted that in recent past, such information was passed to media, whenever, a high profile case was set for hearing or the bench is seized with matter which it would likely to decide as happened before and after October 13. The CJ said that attempts were made to pressurise the judiciary by spreading false stories in the media like the executive order was not sanctified by the parliament, therefore, the members of judiciary took notice of it, the bench cited reason for hearing.
The Supreme Court in its short order in the case regarding withdrawal of judges' restoration notification reports stated that the government has failed to satisfy the Court and any attempt to remove the judges would be tantamount to treason. The court also noted that the media reports were not false and asked the government to probe into the matter and submit the report on October 18, 2010. "The media is doing its job.
They are not lying. Do you think....we do not know anything. Come with truth," the chief justice told the AG. The bench also observed that judges had taken oaths to protect, defend and preserve the constitution and the judiciary being one of the most important organs of state is not allowed to be treated as government of Pakistan has designed. The hearing was adjourned till October 18 with the instruction that a clear-cut policy statement signed by the Prime Minister must be submitted on the next date of the hearing.
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