SC’s Nov 3, 2007 restraining order had no legal status, SC told

ISLAMABAD – Syed Naeem Bokhari, counsel for Justice Jehanzaib Rahim told the Supreme Court on Wednesday that seven-member bench’s restraining order of Nov 3,2007 had no legal status as it was issued without issuing notices and hearing the attorney general and other parties concerned.
He said his client took oath on Nov 4, 2007, when he noticed that the chief justice and judges had been installed in the Supreme Court and similarly the chief justices and judges in the provincial high courts had taken oath on Nov 3, 2007.
He was arguing before a four-member bench comprising Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S. Khawaja, Justice Khilji Arif Hussain and Justice Tariq Parvez, which was hearing contempt of court cases against the superior courts’ judges, who had violated the seven-member bench’s restraining order of November 3, 20007 by taking oath under the Provisional Constitutional Order (PCO).
He said his client took oath under PCO in line with the Pakistan’s history, as it had been a practice since 1958 to Nov 3, 2007 that the judges took fresh oath after the proclamation of emergency or martial law and then remained judges, while those who refused had always been shown the door.
He said the contempt of court notices were issued to his client and other PCO judges after 21 months of their oath, which he said was not a ‘right practice’. He said the case of his client and other PCO judges should be referred to the Supreme Judicial Council (SJC). He said the Nov 3, 2007 restraining order was not a judicial order on the touchstone of Asad Ali case, as in Justice (r) Wajihuddin’s petition against former president Pervez Musharraf, which was filed on Nov 2, 2007, no notice was issued to the Attorney General and the other parties.
He said in the case against Pervez Musharraf for holding dual offices, on October 17, 2007, the Chief Justice Iftikhar Muhammad Chaudhry before separating himself from the bench that was hearing the case against ex-president, had stated that judicial propriety demanded that he should not sit in the bench.
He said the Nov 3,2007 restraining order was also issued on the basis of a miscellaneous application related to Justice (r) Wajihuddin case, thus why the Chief Justice did not separate himself from the restraining order. He requested that his client should be judged on the test of Nov 3, 2007.
Advocate Raja Muhammad Ibrahim Satti appearing on behalf of Justice (r) Abdul Hameed Dogar said the case should be detached from the PCO judges’ cases, as he had not been issued the notice like other PCO judges. He said his client’s petition in contempt of law is still pending before 16-member bench.
During hearing, Naeem Bokhari said the WikiLeaks report had revealed that various other hidden factors were involved in the restoration of deposed judges. Justice Siddiqui however noted that it was a movement of lawyers and the civil society had forced Nawaz Sharif and his party to come out. Later the court adjourned further hearing till Monday.