Reinstatement of five Supreme Court judges challenged: oath under PCO was need of the hour, says Dogar

Former Justice Abdul Hameed Dogar on Tuesday defended his oath under the Provisional Constitutional Order (PCO) of November 3, 2007 terming it as the need of the hour and challenged reinstatement of five apex court judges including Chief Justice Iftikhar Muhammad Chaudhry through executive order.
The Supreme Court had pronounced that former Justice Abdul Hameed Dogar was never Chief Justice of Pakistan and had issued a contempt notice for violating its command of November 3, 2007 that no judge of the superior judiciary should take oath under PCO.
Asking Chief Justice Iftikhar Muhammad Chaudhry to rescue himself from hearing his case, Dogar said: "I dispute and challenge the jurisdiction and judicial power of this court to issue a notice of contempt to serving judges or retired judges for acts done during their tenure in office," in his first public appearance after the retirement in a press conference.
He was flanked by his legal team that included Naeem Bokhari (his purported letter to former President Musharraf was the basis for the dismissal of CJP Chaudhry), Ahmed Raza Kasuri (a die-hard Musharraf supporter) and Rai Nawaz Kharal. In addition to the submission of his rejoinder to contempt of court notice, challenging status of reinstated judges of the SC, former Justice Dogar also filed a petition seeking review of July 31 decision.
Dogar rejected the impression that he had challenged the status of SC judges on any direction from the government as cases against National Reconciliation Ordinance (NRO) were still pending before it. "It is my fundamental right to contest contempt of court notice against me. Our press conference has nothing to do with the NRO," Dogar said.
When asked whether he wanted a decision by the court led by Chief Justice Iftikhar Muhammad Chaudhry or by the court of people of this country, Dogar termed the question irrelevant.
"The restoration of Chief Justice Iftikhar Muhammad Chaudhry through an executive order is also illegal as a notification cannot override a judgement of the Supreme Court," said Dogar's rejoinder. Other judges whose reinstatement has been challenged include Justice Javed Iqbal, Justice Raja Fayyaz, Justice Chaudhry Ejaz and Justice Khalil-ur-Rehman Ramday.
Dogar gave an account of history as a rationale for taking oath under the PCO and said; "The moment this proclamation of 2007 was issued in the afternoon, there was no Supreme Court, no Chief Justice and no Constitution, hence judicial and constitutional vacuum, as had happened many times before."
"The order passed by a seven-member bench on November 3, 2007 after 7pm was a mere piece of paper having no judicial significance issued by persons who were not judges of the SC, but strangers fearing loss of their employment. It was a self-serving order. This order was ineffective, inoperative and farcical," the rejoinder adds.
Dogar referred the judgement of Zafar Ali Shah case which validated the military coup of October 12, 1999 saying the decision had asked the judges to take oath under the PCO, so that the system and judiciary could be safeguarded and country be protected. "I have not committed contempt of court," Dogar said, adding that the time I took oath on November 3, 2007 was never aware of the order passed by the seven-member bench.
He said it is not me who took oath under the PCO, Chief Justice Chaudhry took oath under the PCO twice (as a judge of Balochistan High Court and as judge of SC). If we have no right to sit on the bench, he also has no right. Dogar referred to the notification issued by the government on March 17 regarding reinstatement of deposed judges and said that it (notification) had made it clear that I would remain the CJP till retirement on March 22 and everyone had accepted that.
He said in July 31 decision, the 14-member bench had merely declared emergency as unconstitutional whereas day-to-day business of the court was protected. The decision did not touch 37 ordinances of Musharraf, protected oaths I administered. It was targeted against the judges, he added. Neither military nor any civilian is issued contempt of court notice except the judges, he said.
While talking about the appointment of judges made in his consultation, Dogar said he had administered oath to SC judges including Justice Sardar Raza, Justice Tassadaq Jilani, Justice Nasirul Mulk, Justice Shakirullah Jan, Justice Sarmad Jalal Osmani and late Justice Sabihuddin Ahmed but these judges have not been even touched by the judgement.
Earlier, on July 31 the apex court had declared steps taken by Pervez Musharraf on November 3, 2007 as unconstitutional and had noted that Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan as office of the CJP never fell vacant.
The court had also held that appointments of all judges ie High Court and Supreme Court made in consultation with Justice Dogar were unconstitutional as he (Justice Dogar) was not a constitutional CJP. On October 5, the court had issued contempt of court notice to the superior court judges on violation of the court's command ie restrain order barring judges from taking oath under the PCO on November 3, 2007.
In this respect, judges aggrieved by July 31 order challenged it and filed review petitions. Some 42 judges of the Supreme Court and high court had tendered unconditional apology and 11 applications for review were also withdrawn. However, on October 13, the apex court turned down applications seeking review of July 31 decision and decided to proceed against judges who contested the contempt of court notice.