PCO judges case: Ex-chief judge contests new bench formation

Justice Dogar wants two judges to be excluded from the bench.

ISLAMABAD: Former chief justice Abdul Hameed Dogar has challenged the formation of a new bench for the hearing of a contempt-of-court case against judges who took oath under the Provisional Constitution Order (PCO).

The former chief judge of the apex court objected to the presence of two members on the bench, Justice Khilji Arif Hussain and Justice Tariq Pervez. He pointed out that both the judges had taken oath under the PCO in violation of the court’s restraining order of November 3, 2007.

Chief Justice Iftikhar Mohammad Chaudhry had issued a directive asking the judges of the superior courts to refrain from taking oath under the PCO on the same day emergency was imposed in the country. Therefore, Justice (retd) Dogar took the stance that the two judges should be excluded from the bench.

Sahibzada Ahmed Raza Khan Kasuri, the counsel for Justice (rtd) Abdul Hameed Dogar filed the miscellaneous appeal in the registrar’s office, pleading that the names of Justice Tariq Pervez and Justice Khilji Arif Hussain were recommended by Justice Abdul Hameed Dogar under Article 193 of the Constitution. Justice Khilji Arif Hussain was recommended as a judge for the Sindh High Court whereas Justice Tariq Pervez was recommended as the Chief Justice for the Peshawar High Court.

When these judges took oath of their respective offices, they were fully aware that the applicant had taken oath under the PCO on November 3, 2007, Justice Dogar wrote in his appeal. “Propriety demands that both these honourable judges may kindly rescue themselves and step down from the bench in the interest of justice and fair-play, so that the requirements of Article 10A of the Constitution are fully met which is now a fundamental right guaranteed to a citizen,” he said.

Already, he said, Justice Nasir ul Mulk, Justice Raja Fayyaz Ahmed and Justice Muhammad Sair Ali had separated themselves from the bench after certain objections were raised against them.

The previous bench constituted for hearing the contempt-of-court case against the PCO judges headed by Justice Sair Ali after considering similar objections raised by Dr Basit, the counsel for Justice Shabar Raza Rizvi and Justice Hasnat, refused to present his arguments and dismantled the bench. He forwarded a request to the chief justice for the formation of a new bench.

Published in The Express Tribune, December 12^th, 2010.