ISLAMABAD The Supreme Court was told on Thursday that the absence of parliamentary approval to Nov 3 actions of the imposition of emergency has led the superior court judges to cease as judges, since taking oath under the Provision Constitution Order (PCO) meant swearing allegiance to a military commander and not the constitution.

Any judge who breaks his faith and takes oath under the military commander means he renounces the constitution and commits direct contravention of Article 178 of the constitution as well as the basic principles of the independence of the judiciary and thus ceases to be a judge, Advocate A. K. Dogar, the legal counsel of Shakil Baig (the seconder of Nawaz Sharif in the elections) argued to convince a three-member bench to consider referring the matter 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 had taken up the appeals of the federal government against June 23, 2008 Lahore High Court (LHC) order of disqualifying twice-elected prime minister and PML-N chief Nawaz Sharif from the by-election for being convicted under the plane conspiracy case.

In the same ruling the high court had also kept pending its decision against the candidature of Chief Minister Punjab Shahbaz Sharif until an election tribunal decided about his nomination.

The Supreme Court has already stayed by-elections in NA-123 (Lahore) on June 25, 2008, until it disposes the federation`s petition against the verdict of the LHC.

Earlier PCO of January 2000 promulgated by former President Pervez Musharraf after the Oct 12 military coup was sanctified by the then parliament through the 17th constitutional amendment by introducing Article 270 AA but the Nov 3 oath has not been ratified by any parliament, the counsel emphasised.

Elaborating Article 178 (judges oath of office), A. K. Dogar explained that every adjudicator under this provision solemnly swears allegiance to the country and vows to discharge his duties honestly, to the best of his abilities and faithfully in accordance with the constitution. While taking oath, the judge also swears to preserve, protect and defend the constitution.

Examination of the PCO would expose, he said, that it was not a provisional constitution order but unconstitutional order in which the judges confessed that they would dispense justice in a way that the army chief commands.

It would also mean that the judge is not performing dishonestly, Mr Dogar explained.

While promulgating the Oath of Office (Judges) Order 2007, Mr Dogar noted, the constitution was held in abeyance, requiring the judges to take oath of their offices under the PCO.

Promulgating the PCO means asking judges to quit office if they failed to take oath as prescribed by the army chief within a stipulated period, he said adding this was not the end as judges were also required to remain faithful to the provisions of the PCO.

Would it be comprehensible if the present Army Chief General Ashfaq Pervez Kayani orders the firing of the Supreme Court judges? he rhetorically asked.

Citing examples from the life of Imam Abu Hanifah (founder of Sunni Hanafi school of Islamic jurisprudence), he said, Abu Hanifah chose to go jail because he was not ready to follow the dictate of the then ruler after being elevated as a judge.

At this Justice Leghari asked the counsel to give authentic citation of the facts instead of making someone`s passing remarks as arguments and observed that the counsel was building his arguments on surmises.

Please do not proceed on hypothesis, Justice Leghari observed reiterating that all the judges have taken oath under the constitution.

At one time when Justice Leghari observed that the counsel wanted to say that we were not qualified to be here, A. K. Dogar replied that it was for the judges to decide.

Justice Leghari suggested to conclude the proceedings in an honourable way and adjourned the proceedings for Monday next.