The court had on May 18 ordered the government to de-notify these judges and later gave it till July 26 to do so.
A five-judge bench comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Sarmad Jalal Osmany and Justice Amir Hani Muslim extended the deadline to August 9 after the government, which is already wary of the apprehensions of yet another executive-judiciary row, assured the court that it would de-notify the dysfunctional judges the moment the chief executive returned to the capital and approved a pending summary.
“Dr Babar Awan has stated that the law secretary shall issue the requisite notification in pursuance of the May 18 judgment before August 9,” the chief justice said in an order issued after the assurance given by Dr Awan.
The bench was reviewing the implementation of its May 18 verdict.
The court set the July 26 deadline for implementation of its judgment after Law Secretary Masood Chishty had been summoned by one of its judges last month and asked to suggest to the government in clear terms to take a final decision on the matter.
The Supreme Court had on May 18 ruled that the dysfunctional judges had ceased to hold their offices after the passage of 18th and 19th Amendments. It said the PCO 2007 read with Oath of (Judges) Order 2007 had already been declared unconstitutional by the Supreme Court through a July 31, 2009, order on a Sindh High Court Bar Association’s petition. “Thus no immunity is available to them,” it said.
The (PCO) judges are still part of the judiciary but are dysfunctional and required to be de-notified in accordance with the court orders. They are: Justices Syed Shabbar Raza Rizvi, Hasnat Ahmed Khan, Syed Hamid Ali Shah and Syed Sajjad Hussain Shah of the Lahore High Court and Justice Ms Yasmeen Abbasey of the Sindh High Court. Although Justice Jehanzeb Rahim did not file an intra-court appeal, he will also be affected by the judgment.
At the outset on Friday, the court asked Attorney General Maulvi Anwarul Haq and Law Secretary Masood Chishti why the judgment had not been implemented despite clear directions.
Former law minister Dr Babar Awan, representing the law secretary, told the court that the competent authority (prime minister) had not yet approved the summary sent to him by the law ministry on July 19. Under the Rules of Business of the federal government, the competent authority had to approve or disapprove the summary, he added.
“There is no question of any summary,” the chief justice observed. He said the judgment was the command of the court and a public property which had to be implemented at all cost. The chief justice reminded that rules and business of the federal government functioned under the Constitution which was supreme.
Dr Awan requested the court to give some time and said the prime minister was not in town and had gone to attend the death anniversary of his father and the notification would be issued soon after his return.
“We will not agree to this because the authority of the court is being compromised,” the chief justice said.
The court was apprehensive about the role played by acting law secretary Sultan Shah who had misguided the government by advising it not to de-notify the judges because references against them had been filed in the Supreme Judicial Council under Article 209 of the Constitution which provided the only legal way to send judges home.
Dr Awan informed the court that Sultan Shah had been hospitalised because of heart ailment.
When the court asked about a report which appeared in a section of the press relating to criticism of a court decision, Dr Awan dismissed the report as mere fiction.
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