THE issuance of an order by a dysfunctional judge of the Peshawar High Court, Justice Jehanzaib Rahim, directing four judges of the Supreme Court to appear before him stirred a controversy in which both the apex court as well as the high court had to intervene. Through the said order, delivered on Feb 17, the judge issued show cause notices to the four judges, who are members of a larger bench of the SC, asking them to appear on Feb 21 for explaining and justifying why a date should not be fixed for framing charges against them.

While the said issue remained a hot topic for discussion among the legal circles, another major issue which remained the focus of attention was the proposal related to giving extension to Justice Khalilur Rehman Ramday as ad hoc judge of the apex court for another year and also to appoint Justice (retd) Rehmat Hussain Jaffri as ad hoc judge for two years.

Justice Jehanzaib, along with six other judges of the superior courts, have been facing trial by a larger bench of the Supreme Court for allegedly committing contempt of court as they had taken oath under the Provisional Constitution Order (PCO) in Nov 2007 despite the issuance of a restraining order by a seven-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry.

The very next day a full-bench of the high court headed by the Chief Justice Ejaz Afzal Khan set aside the controversial order by declaring it illegal. The bench observed that under the high court rules, the said judge had no authority to act on his own as the chief justice was the authority to constitute bench and fix cases before it.

On the same day a Supreme Court bench also restrained all PCO judges facing contempt charges from issuing any order. “We are constrained to pass an order that all the six high court and one Supreme Court judges (dysfunctional) shall not pass any such order against the members of the bench (four-judge SC bench) or the judges of the Supreme Court,” the bench ruled.The issuance of the said order by Justice Jehanzaib proved that the controversy which emerged with taking of oath under the PCO after imposition of emergency by General Pervez Musharraf on Nov 3, 2007 was far from over. Despite the passage of over three years, the controversy still continues to linger on. A larger bench including the said four judges is set to frame charges against the PCO judges on Feb 21. At the same time, another bench of the apex court would hear review petitions of two of the PCO judges.

Following the imposition of emergency nine of the 13 serving judges of the high court, including Justice Jehanzaib Rahim, had taken oath under the PCO. The then high court Chief Justice Tariq Pervez Khan, Justice Shahjehan Khan, Justice Ejaz Afzal Khan and Justice Dost Muhammad Khan had not taken oath under the PCO.

When the SC declared the said proclamation of emergency as unconstitutional in July 2009, only three of the said nine PCO Judges -- Justice Jehanzaib, Justice Said Maroof Khan and Justice Hamid Farooq Durrani were functioning in the high court.Later, a 14-member bench of the SC dismissed all the review petitions filed against the July verdict in Oct 2007 and issued contempt of court notices to several former and serving judges for violating a restraining order issued by the court on Nov 3, 2007, through which judges were asked not to take oath under the PCO.

Except Justice Jehanzaib, rest of the two judges opted for early retirement.

The issue of ad hoc judges also remained a source of concern for the legal fraternity. While the Supreme Court Bar Association and the Pakistan Bar Council expressed reservations over the said proposal, the Khyber Pakhtunkhwa Bar Council also opposed the move in its meeting on Saturday last.

The meeting observed that on the one hand the SC had itself been discouraging ad hocism in government departments and on the other hand the judges of the apex court had demanded giving extension to Justice Khalilur Rehman Ramday and appointment of Justice Rehmat Hussain Jaffri as ad hoc judge. Some of the lawyers believe that by giving extension to Justice Ramday an impression had been created as if he was indispensable.

Another controversy which still persists is about relieving five of the additional judges of the high court by the Judicial Commission in January last. A requisition signed by over 120 members of the PHC Bar Association was submitted with the cabinet for convening a meeting for discussing the issue.

However, the cabinet did not fix a date for convening the meeting and instead announced holding of annual elections on March 12.

Although, the said five judges -- Justice Ziaur Rehman Khan, Justice Sardar Shaukat Hayat, Justice Samad Khan, Justice Sher Muhammad and Justice Imtiaz Ali -- were appointed for a period of one year, which would expire on March 15, but they preferred to stay away from judicial work.The Khyber Pakhtunkhwa Bar Council has also expressed reservation over the non-confirmation or non-extension in services of the five judges and demanded that they should be given extension.