Justice Dogar apologises for PCO oath
By Nasir Iqbal
ISLAMABAD: Former chief justice Abdul threw himself at the mercy of the Supreme Court on Thursday by saying sorry and showing repentance for having taken oath under the Provisional Constitution Order promulgated by former president Pervez Musharraf in 2007.
Justice Sayed Zahid Hussain, one of the nine judges facing contempt of court charges for taking oath under the PCO in defiance of a Supreme Court restraining order on Nov 3, 2007, said he had decided to resign his nominal office.
The hearing of intra-court appeals, by a seven-member bench, filed by seven sitting judges and two retired judges took an abrupt turn when Justice Sayed Zahid Hussain, a sitting but non-functional judge, resigned his office and Justice (retd) Hameed Dogar said he had come to repent his decision of taking oath under the PCO.
Justice (retd) Dogar, Justice Zahid Hussain of the Supreme Court, former LHC chief justice Iftikhar Hussain Chaudhry and justices Syed Shabbar Raza Rizvi, Hasnat Ahmed Khan, Syed Hamid Ali Shah and Syed Sajjad Hussain Shah of the Lahore High Court, Ms Yasmeen Abbasey of the Sindh High Court and Jehanzeb Rahim of the Peshawar High Court are to be tried under contempt by another four-judge bench of the apex court.
At the last hearing, Chief Justice Iftikhar Mohammad Chaudhry had questioned the legal status of PCO judges. He asked could these judges be called a judge when parliament had not legalised the Nov 3, 2007, emergency and the actions taken under it while passing the 18th Amendment.
On Thursday, Advocate Raza Kazim, counsel for other non-functional judges, sought time to consult his clients and apprise them of the latest development.
At the outset, Advocate S.M. Zafar, the counsel for Justice Zahid Hussain, informed the court that his client had submitted his resignation to President Asif Ali Zardari on March 1 by forgoing the remaining four years of his service as a judge of the apex court. The judge also requested the court to discharge the contempt notice issued against him.
Justice Hameed Dogar also pleaded for withdrawal of the contempt notice. He was relegated to the post of a judge of the apex court under the July 31, 2009, landmark judgment of the Supreme Court holding the Nov 3 emergency illegal.
“With all humility and humbleness at my command, it is submitted that under abrupt, unexpected changes, confusion, misconception and misunderstanding the Nov 3, 2007, restraining order could not be complied with which is highly regretted with repentance and sorrow,”
Justice Dogar said in a statement submitted to the Supreme Court.
“I stood retired on March 21, 2009, and not enjoying good health,” he said. He requested the court to accept his regrets and withdraw the notice of contempt.
In its order the court recalled the July 31 verdict by stating that it had declared Justice (retd) Dogar as someone who had never been the chief justice and, therefore, all his actions of appointing judges were unconstitutional.
The court, however, made it clear that Justice (retd) Dogar would not claim any exception to what had already been declared in the July 31 verdict.
About Justice Zahid, the court said it had considered the repentance and the opinion expressed by him that the dignity of this court was the foremost duty of its members, particularly when the restraining order for the first time in the history of Pakistan was passed by the court that eventually blocked future imposition of martial law and subsequent unconstitutional steps.
“A person has realised this after much water has flown under the bridge and realising that he had placed himself at the mercy of the court and is not likely to adore benches of this court, we accept his appeal.”
Before adjourning the hearing for March 21, the court asked Advocate Raza Kazim to submit a joint application to its registrar with a request to further extend the framing of contempt charges by another four-judge SC bench. The bench is scheduled to meet on March 7.
DECISION HAILED: Lawyers lauded the two judges’ decision and described the event as a breath of fresh air. They said it was for the first time that a judge of the Supreme Court had apologised for taking oath under the PCO.
Tariq Mehmood, a former judge of the Balochistan High Court, was of the opinion that the move would help cool tempers and remove mistrust between major parties.
“This will add another chapter to the annals of our judicial history that will establish that dignity and respect for institutions should be honoured at all cost,” he said, adding that contempt matters were something which always remained between the court and the person found guilty of contempt.