ISLAMABAD, Feb 10: A senior lawyer on Tuesday told a Supreme Court bench hearing the case of Sharif brothers’ electoral eligibility that the PML-N leaders were fighting to restore the majesty of the judiciary which, he said, had been humbled thrice by the former military president.

“It was the army, the martial law administrator and the general who divided the judiciary not once but thrice -- by ousting a democratic government which enjoyed a two-third majority in October 1999, deposing Chief Justice Iftikhar Mohammad Chaudhry on March 9, 2007, and proclaiming the state of emergency on Nov 3, 2007,” said Advocate A.K. Dogar, counsel for Shakil Beg, the seconder of Nawaz Sharif’s candidature in election.

The three-member bench comprising Justice Mohammad Moosa K. Leghari, Justice Syed Sakhi Hussain Bukhari and Justice Sheikh Hakim Ali is hearing appeals of the federal government against the June 23, 2008, order of the Lahore High Court disqualifying Mr Sharif from contesting a by-election for having been convicted in the plane conspiracy case.

“Unfortunately, the judiciary in our country always favours military interventions,” Advocate Dogar deplored. However, he said an amendment proposed in PPP’s constitutional package suggested punishment for not only dictators who overthrew democratic governments in future but also for judges who always acted as collaborators.

Turning his guns to the Oath of Office (Judges) Order 2007 under which superior court judges had taken oath of allegiance to the former army chief, the counsel recalled that the former general while proclaiming the state of emergency had not suspended Article 2A of the Constitution, but kept it enforced.

Since Article 2A called for securing the independence of judiciary which, Advocate Dogar explained, could not be realised in undemocratic dispensations. Therefore, this article being a supreme law had demolished the oath of office order because it was in direct contravention of the constitutional provision.

“Thus the oath of office (judges) order under the Provisional Constitution Order (PCO) is unconstitutional and in conflict with the independence of judiciary,” the counsel argued.

Similarly, taking of fresh oath by superior court judges under the Constitution after the Dec 15, 2007, revocation of the emergency rule was inconsequential whereas the judges who had taken oath under the PCO should be considered as if they were not judges, he said.

He cited a Hadith of the Holy Prophet (PBUH) which said: “The one who does not fulfil his oath has no faith.”

Referring to the Tikka Mohammad Iqbal case in which the Supreme Court had validated the Nov 3 proclamation of emergency, Advocate Dogar claimed that the apex court had made an incorrect law in contravention of so many judgments.

Citing a number of judgments, the counsel tried to establish that the LHC had no jurisdiction to disapprove of chief election commissioner’s decision holding Mr Sharif qualified to contest the by-election and said that in a writ petition the high court was prohibited from looking into the merits of an order given by a forum having jurisdiction to do so.

“A mere illegality committed by a forum with jurisdiction to decide particular matters should not be a ground for entertaining a constitutional petition by the high court to overrule the order of such forums,” he said, adding that this meant that there was no case unless the petitioner showed that the CEC had no power to decide in favour of Mr Sharif to participate in the election.

“If there is a four-member bench of the high court and their judgment is split then the order of the lower court always prevails,” the counsel argued.