Former adhoc judges of Lahore High Court (LHC) Muhammad Ahsan Bhoon and Anwarul Haq Punnu have filed petitions in the Supreme Court for review of its July 31 judgement. The petitioners contended that they were qualified to be appointed as judges of the high court in accordance with the requirements of Article 193 (2) of the 1973 Constitution and were offered to serve as adhoc judges in consequence of consultation required under the Constitution.
They accepted the offer and took oath on March 3, 2009. They never took oath under any PCO and continued performing the functions as judges of the high court till the passing of the July 31 judgement. They prayed for the review of impugned order because it had been passed in violation of the universally accepted principle of audi paltrem and they had been condemned unheard. The former judges have submitted that the Supreme Court had applied the July 31,2009 judgement with retrospective effect from November 3,2007.
The 14-member Supreme Court had, however, not applied the sanction to the judges who had taken oath under the PCO in 1999 and office order of January 25,2009. They contended that the impugened judgement of July 31 was not sustainable under the Code of Conduct laid down by the Supreme Judicial Council under Article 209 of the Constitution which stated that a judge must decline resolutely to act in a case involving his own interest.
The interest of the members of the bench was involved in giving the July 31 judgement as they had declared their holding of office as constitutional and lawful.
The judgement would thus fall in the category of self-serving judgement. Declaration of promulgation of emergency and PCO as unlawful after it had been repealed on December 15, 2007 as unconstitutional was a violation of the basic principle of law under which repealed laws were never made the subject of adjudication because the same had ceased to exist.
Some of the judges of supreme court who performed their duties under Dogar also sat on the SC bench that gave the July 31 judgement could not have been a party to the finding that he was never the chief of Pakistan. The present chief justice also accepted the stance of the government that Dogar was chief justice until his retirement as he assumed his office after his retirement. The appointment of the petitioners had, however, been set at naught only on account of the fact that they were appointed in consultation with him.