ISLAMABAD: Justice (retd) Abdul Hameed Dogar filed a petition in the Supreme Court on Tuesday seeking reversal of its July 31 ruling declaring his incumbency as chief justice of Pakistan unconstitutional. He also challenged the incumbency of his successor.

‘Chief Justice Iftikhar Mohammad Chaudhry was restored to the present top judicial position through an executive order and (is), therefore, illegal, as a notification cannot override a Supreme Court verdict,’ Justice Dogar told reporters at a hotel.

He was referring to the Supreme Court’s verdict in the Zafar Ali Shah case of 2000 which had validated Gen Pervez Musharraf’s October 1999 coup.

Accompanied by senior counsel Naeem Bokhari, Ahmed Raza Qasuri and Rai Mohammad Nawaz Kharal, Justice Dogar said the word ‘restoration’ was alien to the Constitution.

He also questioned the reinstatement of Justice Javed Iqbal, Justice Khalilur Rehman Ramday, Justice Raja Fayyaz and Justice Chaudhry Ijaz through the executive order.

He filed a reply to a contempt notice issued to him, a petition seeking review of the July 31 order and a challenge to the reinstatement of the chief justice.

Justice Dogar described the issuance of the contempt notice by the 14-judge bench as discriminatory and sought its immediate recall for being against the much talked about comity of judges.

‘If taking oath by me is disobedience and the restraining order remained binding and operative, all civil and military authorities and judges who took oath under him but did not act upon the order should also have been issued similar notices,’ he contended.

The incumbent CJ accepted the return to the top office after his (Justice Dogar’s) retirement on March 22, 2009, and not a day before, Justice Dogar said, adding that the judgment against the terms of his restoration was void, since he could not be a judge in his own cause.

Justice Dogar also contested the Nov 3, 2007, restraining order of a seven-judge bench ordering superior courts’ judges not to take oath under the Provisional Constitution Order (PCO) by contending that it was neither passed by the apex court nor by judges of the Supreme Court, rather by ‘strangers’ who he alleged were adamant to call themselves judges.

Therefore, the restraining order was devoid of any moral or legal authority and its violation could not result in contempt, he said.

Besides, judges were answerable for their conduct only to the Supreme Judicial Council (SJC) and not to anyone else, least of all to a bench of the apex court, he said.
 
Justice Dogar claimed that the 2007 presidential reference against the chief justice for misusing his office was still pending and, therefore, should be re-heard.

He said five judges who were sitting on the 14-judge bench that unseated several superior court judges on July 31 -- Justice Sardar Raza Khan, Justice Nasirul Mulk, Justice Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Sarmad Jalal Osmany and late Justice Sabihuddin Ahmed -- had been appointed on his recommendation and administered oath by him.

The omission of this oath was conspicuous by its absence in the judgment, Justice Dogar said. He alleged that the judges were violating the code of conduct for judges by sitting on the bench, thus liable to be prosecuted under Article 209 (SJC).

He said Justice Anwer Zaheer Jamali and Justice Syed Zahid Hussain had also been recommended for appointment as chief justices of the Sindh and Lahore high courts.

He termed the order of issuing contempt notices to serving and former judges of the Supreme Court as most unfortunate and a dangerous precedent, alleging that it had paved the way for similar action in the future.

‘One set of judges would issue notices to another group of judges and whenever one group has a majority, they will prosecute and persecute their peers,’ Justice Dogar said in his reply to the contempt notice.

He contended that the judgment had failed to note that he also had taken fresh oath under the Constitution as chief justice on Dec 15, 2007, soon after the recall of the PCO by the former president.

Besides, Justice Osmany was a member of the 14-juge bench that delivered the July 31 short order, he said.

If the judge, according to the order, was an intruder then his participation as an intruder rendered the entire judgment void, he said.

Justice Dogar alleged that the institutions of the Supreme Court and the high courts had been ‘destroyed’ through the judgment and, therefore, it merited a review on legal, constitutional and moral grounds.

He requested the chief justice not to sit on the bench while hearing his case, saying the judgment had been authored by the chief justice who had mentioned himself 28 times in contravention of the code of conduct and basic norms of natural justice.

The judgment, he said, also condemned, vilified and humiliated the petitioner unheard for reasons that were not understandable.