ISLAMABAD, Jan 3: The Supreme Court hearing contempt charges against superior court judges for taking oath under the Provisional Constitution Order was told on Monday that its decision to prosecute the sitting judges was based on a conclusion contrary to what was held in the July 31, 2009, verdict of declaring the emergency unconstitutional.

A four-judge bench comprising Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S. Khawaja, Justice Khilji Arif Hussain and Justice Tariq Parvez is hearing contempt cases against former chief justice of the Supreme Court Abdul Hameed Dogar, former chief justice of the Lahore High Court Iftikhar Hussain Chaudhry and eight sitting judges — Justice Sayed Zahid Hussain of the Supreme Court and Justices Khurshid Anwar Bhinder, Hamid Ali Shah, Zafar Iqbal Chaudhry, Hasnat Ahmed Khan, Syed Shabbar Raza Rizvi, Yasmin Abbasey and Jehan Zaib Rahim of different high courts.

They took oath under the PCO in defiance of a restraining order issued by a seven-judge bench on Nov 3, 2007, moments after former president Pervez Musharraf had imposed the emergency.

S.M. Zafar said he had read the July 31 verdict thoroughly, but since the judges had committed the worst defiance by taking oath under the PCO their cases should be referred to the Supreme Judicial Council under Article 209 of the Constitution, instead of Article 204 by issuing contempt notices.

“Violation of any Supreme Court order comes under misconduct and should always be taken up by no forum other than the SJC. The Constitution provides a clear procedure to deal with such matters,” he argued.

The counsel regretted that Justice Zahid Hussain was part of a meeting decided to suitably amend the code of conduct for superior court judges by adding a new clause forbidding any oath of office other than what was provided in the Constitution in compliance with the directives given in the July 31 judgment.

The clause requires that no judge of the superior judiciary will render support in any manner whatsoever, including taking or administering oath in violation of the oath of office prescribed in the Third Schedule to the Constitution to any authority that acquires power other than through the modes envisaged by the Constitution.

Justice Jawwad Khawaja observed that the judges had defied a constitutional order of the Supreme Court not to take oath under the PCO.

Justice Shahid Siddiqui said the contempt notices against the judges were issued after they had filed review petitions against the July 31 judgment. “We are only concerned with the violation of the apex court's restraining order of Nov 3, 2007, because these people had frustrated court's attempt to block the proclamation of emergency,” he observed.

“But what I have understood that the Supreme Court in its July 31 verdict had issued a clear and permanent order that any disobedience by a judge of taking oath under the PCO would mean that their case should always be referred to the SJC under Article 209 of the Constitution,” S.M. Zafar said.

The bench will resume the hearing on Tuesday.