ISLAMABAD, Oct 30: The Supreme Court on Wednesday said it took oath under the PCO to preserve the judicial system, and due to its judgment in which it validated the military takeover the army was going back to barracks by restoring democracy.

The apex court, responding to the statement of the Supreme Court Bar Association that arguing a case before the present judiciary was a futile exercise “as it had ceased to be independent,” observed that it reserved its right to take action against the president of SCBA, Hamid Khan, for his “disparaging remarks” about the independence of the judiciary.

The SCBA had asked the SC bench on Monday to return its review petition as the bar was of the view that the judiciary, after taking oath under the PCO and by upholding various orders and acts of the present military regime, had ceased to be independent and no substantial question of constitutional importance should be argued before this court in its present composition.”

The SC bench called the president of the SCBA, “Hamid Khan, contemner,” and said the SCBA statement was “motivated by malice, extraneous considerations and for political reasons.”

In its five-page order, authored by Chief Justice Riaz Ahmad, the SC held that the contents of the application constituted gross contempt of court as it used disparaging remarks about the judiciary through the language which could not have been expected from the pen of the SCBA president.

The SC asserted that democracy was being revived in the country and the regime would go back to barracks because of the SC judgment in Zafar Ali Shah case and the oath taken by judges of the SC (under PCO).

“It is because of the judgment in Zafar Ali Shah case and oath taken by the judges of the Supreme Court that a time schedule was given and the regime had to hold elections and to go back to barracks after restoration of democratic institutions.”

The court said that in compliance with its judgments, elections were held in the country on Oct 10, 2002, and the process of transfer (of power) was in progress.

The SC said that taking oath under the PCO by judges of the superior judiciary was welcomed by the senior lawyers like Khalid Anwar and SM Zafar. It said that those judges who had refused to take oath under the PCO did so according to their conscience and “heavy responsibility lay upon the judges who took oath (under PCO) for dispensation of justice.”

The SC stated that its judgment, validating the military takeover, was universally acclaimed and had been described as a landmark judgment.

The court said it could proceed to take action against Hamid Khan, president of SCBA, but it was always appropriate to exercise restraint. “However, we reserve the right to take the proper action at an appropriate stage.”

The SC said: “Unfortunately, some members of the Bar, motivated by malice, extraneous considerations and for political reasons or ill-will, make irresponsible statements to tarnish the image of the judiciary which is not at all in the supreme national interest.”

The SC said it “strongly deprecate and condemn this attitude on the part of Hamid Khan and considering the contents of this application scandalous, malicious and irrelevant, we order that paragraph (I) and (II) therefore be struck off.”

The SC said it had highest respect for those members of the bar, who have shown respect to the judiciary. By making such attempts the members of the bar were abusing the sacred elected office, it said.

The court further observed that by taking oath under the PCO the judiciary had “saved the independence of (the) judiciary as well as the system of administration by preserving the Bar as well.”

“Failing which the bar would have been replaced by all together a new system unknown to a civilised society.” It said that judges took oath under the PCO “in the highest national interest, and therefore we have deliberately not chosen to proceed against Hamid Khan in view of the interest of the institution, “but we reiterate that we reserved our right to proceed against Hamid Khan, contemner.”

The court observed that Hamid Khan knew that all the points which had been raised in the review petition had already been dealt with in the judgment, and the court would not allow re-hearing of the matter. The court said that knowing full well the consequences of the review petition, the counsel deliberately declined to argue the case “motivated by malice, ill-will and extraneous considerations.”

The court said that review petition was fixed for hearing on Oct 28 when a request for adjournment was moved on behalf of Hamid Khan, expressing his inability to appear before the court on the said date due his unavoidable personal obligation and prior commitments.

The bench assembled in the court to consider the aforesaid request for adjournment when, surprisingly, the court noticed the presence of Hamid Khan in the courtroom who came at the rostrum and submitted an application under the caption “Statement at the Bar”.

The court said that it was high time that counsel like Hamid Khan and the members of the bar realised their responsibility towards the courts and the society.

“If this state of affairs continues then God be with us and nothing more could be said about it. As a consequence of the above, this review petition has no merits and the same stands dismissed accordingly”, the court concluded.