Sanctioning emergency: ‘PCO judges took cue from past tradition’

Justice Siddiqui says Nov 3, 2007 actions were neither endorsed by the judiciary nor the parliament.

ISLAMABAD: The head of a Supreme Court bench said on Wednesday that in line with past tradition the Provisional Constitution Order (PCO) judges took oath on November 3, 2007 and stifled their conscience.

Justice MA Shahid Siddiqui made the observation during the course of the hearing of the PCO judges case. “My client (former chief justice Abdul Hameed Dogar) emulated the example set by the judiciary over the past half century,” maintained defence lawyer Ibrahim Satti.

The four-member larger bench of the apex court comprises Justice Jawad S Khawaja, Justice Khilji Arif Hussain and Justice Tariq Pervez.

“The events of November 3, 2007 were neither endorsed by the judiciary, nor by parliament. Nor could they garner the support of the people of this country,” Justice Siddiqui observed. The Supreme Court did not invalidate the events of November 3 till the verdict of July 31 in 2009, Satti argued.

“No, these steps were declared illegal and in violation of the Constitution on November 3, 2007. The seven-member bench gave its verdict against the emergency and issued a restraining order barring judges from taking oath under the PCO.” Justice Khawaja refuted the counsel’s contention.

The judiciary has traditionally supported coups d’état, invoking the doctrine of necessity. The chief justice as well as senior justices also took oath under the PCO when Pervez Musharraf staged a military takeover in 1999. But he broke with tradition on November 3 and upheld the Constitution.

“If the judges of the higher judiciary were to be prosecuted, a verdict against these judges would then be public property. Your judgment will act as a precedent for other cases in the Supreme Court,” Satti submitted before the bench.

“The bench has heard your arguments in detail as was our duty. But conviction and compliance are two different things,” Justice Khawaja observed adding, “As we have said time and again judges are not above the law and the Constitution.”

The court directed the counsel to conclude his arguments today (Thursday) and adjourned the case. During the course of hearing on Tuesday, the counsel had contended that the judges who took oath under the PCO in November 2007, acted in accordance with the law, since the Supreme Court pronounced its verdict of July 31 a year and a half later.

The court is hearing the cases of Justice (retired) Abdul Hameed Dogar, and former chief justice of Lahore High Court, Iftikhar Hussain Chaudhry.

Published in The Express Tribune, January 20^th,  2011.