ISLAMABAD, Jan 18: The Supreme Court hearing contempt charges against superior court judges for taking oath under the Provisional Constitution Order was told on Tuesday that independence of judiciary required judges to resolve contentious issues according to judicial conscience, instead of resigning en bloc.

Citing the Zafar Ali Shah case of 2000 in which the apex court had validated the Oct 12, 1999, coup by former army chief Gen Pervez Musharraf, Raja Ibrahim Satti, the counsel for former chief justice Abdul Hameed Dogar, said the court had held in the judgment that the foremost duty of a judge was always to save the judicial organ.

A four-judge SC bench comprising Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S. Khwaja, Justice Khilji Arif Hussain and Justice Tariq Parvez is hearing contempt cases against Justice (retd) Abdul Hameed Dogar, former chief justice of the Supreme Court; Iftikhar Hussain Chaudhry, former chief justice of the Lahore High Court; 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 are facing contempt charges for taking oath under the PCO in defiance of a restraining order issued by a seven-judge bench on Nov-3, 2007, moments after the proclamation of emergency by former president Pervez Musharraf.

Advocate Satti argued that the judges had followed a persistent principle developed since 1951 till the Nov 3, 2007, emergency to save the system. En bloc resignation, he said, would have created complete chaos and anarchy in society. However, he said, when the emergency was lifted after 39 days on Dec 15, 2007, the Constitution was restored and the chief justice along with other judges took oath under it.

The counsel recalled that Justice Mian Shakirullah Jan and Justice Nasirul Mulk had been appointed on the recommendations of Justice Dogar. They had accepted Justice Dogar as the chief justice for having been sworn in by him despite the fact that they were the same judges who were signatory to the Nov 3, 2007, restraining order issued by the seven-judge bench.

“Notices of contempt cannot be issued against fellow judges who are on equal footings with their peers,” Advocate Satti said, adding that a number of judges had rendered unconditional apologies after the July 31, 2009, judgment by the Supreme Court holding the emergency unconstitutional, but those who disagreed with the verdict were told to face contempt charges.

When the counsel tried to establish that Justice Dogar was the focus of target, Justice Khwaja said that directions of all cannons were not set on his client, rather 72 notices had been issued to the judges who had taken oath under the PCO.

Referring to a recent judgment which held that a judge could not be stopped from performing his duties even if he was facing a reference in the Supreme Judicial Council, Advocate Satti said his client was being victimised for defending his actions taken to safeguard constitutional obligations.

The bench will take up the case again on Wednesday.