ISLAMABAD, Jan 15: The Supreme Court was told on Thursday that in the absence of parliamentary approval for the imposition of emergency the superior court judges sworn in under the Provisional Constitution Order (PCO) ceased to be judges, because the oath meant allegiance to a military commander and not to the Constitution.

“Any judge who takes oath under a military commander renounces the Constitution and commits direct contravention of Article 178 of the Constitution as well as the basic principles of the independence of judiciary, thus he ceases to be a judge,” said Advocate A.K. Dogar, counsel to Shakil Baig, the seconder of Nawaz Sharif’s candidature in a by-election.

He was pleading before a three-judge bench to consider referring the case of Mr Sharif’s candidature to the chief justice to form a larger bench.

The bench comprising Justice Mohammad Moosa K. Leghari, Justice Syed Sakhi Hussain Bukhari and Justice Sheikh Hakim Ali is hearing appeals by the federal government against an order of the Lahore High Court (LHC) disqualifying the former prime minister from the by-election for having been convicted in the plane conspiracy case. The Supreme Court has stayed the by-election for the National Assembly seat in Lahore, NA-123.

The counsel said the PCO of January 2000 had been approved by parliament through the 17th Amendment to the Constitution by introducing Article 270AA but the Nov 3, 2007, action had not been ratified.

He said that under Article 178, every adjudicator solemnly swore allegiance to the country and to discharge his duties honestly, to the best of his abilities and faithfully, in accordance with the Constitution. While taking the oath the judge also swore to preserve, protect and defend the Constitution, he said.

He said the PCO of 2007 was not a Provisional Constitution Order but an unconstitutional order tantamount to destruction of the Constitution, under which the judges had to say that they would dispense justice in a way the army chief would command.

It would also imply that the judge would perform his function dishonestly, in a faithless manner, Mr Dogar said.

While promulgating the Oath of Office (Judges) Order 2007, the Constitution was held in abeyance and the judges were required to take oath of their offices under the PCO, he said.

The action was tantamount to asking judges to quit if they failed to take oath as prescribed by the army chief within a stipulated period and to remain faithful to the provisions of the PCO, he contended.

“Would it be comprehensible if the present Army Chief, Gen Ashfaq Parvez Kayani, issued an order to fire the Supreme Court judges?” the lawyer asked and then went on to answer: “No.”

He said Imam Abu Hanifa had chosen to go to jail because he was not ready to follow the dictates of the ruler after being elevated as a judge.

At this, Justice Leghari asked the counsel to give authentic citation of facts, instead of presenting someone’s passing remarks as arguments. He observed that the counsel was building his arguments on surmises. “Please do not proceed on a hypothesis,” Justice Leghari observed, reiterating that all the judges had taken oath under the Constitution.

When Justice Leghari observed that the counsel wanted to say that “we are not qualified to be here”, Mr Dogar said it was for the judges to decide.

When some remarks by Advocate Ahmed Raza Qasuri, who was representing a candidate and a voter, lead to acrimony between the two lawyers, Justice Leghari suggested that the proceedings should be concluded in a harmonious and honourable way and adjourned the hearing till Monday.