ISLAMABAD, Jan 16: A full court reference held to honour Justice Tanvir Ahmad Khan on his retirement provided the Bar an opportunity on Friday to criticise the doctrine of necessity and its use by the judiciary to give military rulers the much-needed legal cover to deviate from the constitutional path.

It was the first direct contact of the judiciary and the lawyers of the country during the last four years. Supreme Court's new Chief Justice Nazim Hussain Siddiqui, who took the bold decision of reviving the tradition of holding the full court references, showed great composure, sitting along with all his 13 colleagues, and allowed the Bar leaders to recount the unpleasant judicial history of the country.

After listening to the speeches of Pakistan Bar Council vice-chairman Qazi Mohammad Anwar and Supreme Court Bar Association president Tariq Mehmood, the chief justice said: "We must forget our differences, which were the result of misunderstanding, and make sincere efforts to bring efficiency in the judicial system."

He described the Bar and the bench as the two pillars of the judicial system and urged them to strengthen the system. Attorney-General Makhdoom Ali Khan said the person choosing the career of a judge consciously embarked upon an arduous course. "For that alone he deserves our respect," he said.

Qazi Mohammad Anwar said the retiring Justice Tanvir Ahmad Khan was appointed as a judge of the High Court when Gen Ziaul Haq had died, and at that time the parliamentary system was revived.

He said the retiring judge was fortunate to have missed being a member of the SC bench that validated the military takeover and "allowed the Army chief to rule the country for three years without parliament as chief executive and to hold elections within three years".

The Supreme Court at the same time authorized the Army chief to amend the Constitution, though these "powers are not available to the Supreme Court itself".

He said the apex court disappointed the nation not once, but every time the nation was subjected to military rule by usurpers. Qazi Anwar was of the firm view that frequent interventions by "the Army can only be prevented by strict compliance and enforcement of Article 6 of the Constitution".

He said the rule of law and upholding of human dignity was not possible unless the past usurpers coupled with the present one were put on trial. The Supreme Court, he said, first established the principle of seniority, but itself violated the judgment for "self-serving reasons".

SCBA president Tariq Mehmood people had lost faith in the judiciary. He felt sorry that a similar reference was not held for those judges who had to quit on the enactment of the 17th Amendment to the Constitution.

"The outgoing judges did not listen to the demand of the Bar for not accepting the extension in their retirement age." He said that if the manner in which the retirement age of the judges was enhanced was embarrassing, the manner in which it was withdrawn was most humiliating.

He said the Bar and the bench, which were called two wheels of the justice chariot, had remained imbalanced in last couple of years. "Who was responsible for the imbalance is a million dollar question?" he said.

In Pakistan, the judiciary had earned an "unfavourable repute, particularly in the last four years". He said that since the Independence, the SC had played a crucial role in the constitutional and political history of Pakistan.

"It took a flying start, and so strict was the rule of conduct that the first chief justice of the federal court, Justice Abdul Rasheed, refused to interact with Prime Minister Liaquat Ali Khan even on social basis." But now, he said, "meetings are fixed at the cost of national exchequer to provide facilities to judges to attend their private engagements". The first test of the judiciary came when Ghulam Muhammad with the support of Ayub Khan dissolved the constituent assembly.

Maulvi Tameezuddin's case raised a new controversy and the federal court held that the Emergency Powers Ordinance was invalid. The judgement in the Usif Patel case compelled Ghulam Muhammad to invoke advisory jurisdiction of the federal court, which gave birth to the law of necessity.

The court in Dosso's case held that if the revolution was victorious, the revolution itself became law. "What would have happened had the court decision been different. Apprehensions in the mind of Justice Munir were baseless as the end result of Oct 7, 1958, coup was the Fall of Dhaka."

He said the Supreme Court in Sheikh Liaquat Hussain's case observed that the present Constitution of Pakistan did not admit imposition of martial law in any form at a time when a democratic government was in power. But still Gen Musharraf took over the reins of the country, he added.

In Zafar Ali Shah's case, the apex court again relied on the doctrine of necessity and retained the powers of judicial review. "However, the court did not find proper to use its power of judicial review against any effective order issued by the chief executive."

The best case could be the presidential referendum as it was in deviation from the parliamentary structure of the Constitution and in violation of the very judgement of the Supreme Court through which Gen Musharraf had sought validity.

The SCBA president said former chief justice Nasim Hasan Shah in a television programme confessed that "judiciary cannot pass any adverse order against the wishes of the Army and if they do, they will be shown the exit gate".

He said the allegation of judicial murder of prime minister Bhutto was also conceded by the former chief justice, who was a member of the bench. Tariq Mehmood said the basic fault was in the mode of appointment of judges. "Not only governments have been interfering in the process of appointments to accommodate their favourites, but the chief justice of the SC and those of High Courts also display nepotism and favouritism."

He demanded that the Supreme Judicial Council should be activated to make the judges accountable, and that they should not be appointed on executive posts.