KARACHI, Dec 16: The Sindh High Court has issued a notice to the attorney-general in a plea raised by one of its retired judges that he is not disqualified by the Constitution to appear before it as counsel.
Justice Mohammad Sadiq Leghari, who retired as a Sindh High Court judge earlier this year, filed his power of attorney in a petition on behalf of the petitioner. The SHC office objected that having retired as a confirmed judge, he was barred from appearing as counsel under Article 207 (3) (b) of the Constitution. Questioning the objection, the ex-judge sought a judicial pronouncement on the issue.
A division bench comprising Chief Justice Sabihuddin Ahmed and Justice Faisal Arab issued a notice to the AG for January 23, 2007, as ‘a question of interpretation of a constitutional provision is involved’. It also requested advocates Abdul Hafeez Pirzada and Khalid Anwar to assist the court as amicus curiae.
Article 207 (3) (b) says that ‘a person who has held office as a permanent judge of a high court shall not plead or act in any court or before any authority within its jurisdiction’. Mr Leghari, the bench noted in its notice, says that the provision is applicable only to subordinate courts or authority within the jurisdiction of a high court and not the high court itself, which cannot be treated as functioning under its own jurisdiction’.
Ex-justice Leghari also said in his response to the office objection that he was a member of the civil service at the time of his appointment as a high court judge and if he had retired as a civil servant, there would have been no restriction on his practicing as an advocate in any court. “The limited condition of service put by Article 207 (3) (b) is also not applicable to me in the presence of privilege in respect of conditions of service granted by Article 205 (Fifth Schedule) to a judge who was a member of the civil service immediately before his appointment as a judge of high court”, he said.
The said provision (Article 205), he added, grants the privilege and prohibits the application of conditions of service less favourable to the conditions he would have been entitled to as a member of the civil service had he not been appointed a high court judge.
The former judge further stated that he was also entitled to plead or act as an advocate in the SHC and the courts subordinate to it under the Chief Executive’s Order 5 of 2000 (High Court Judges Service Benefits Order, 2000) which has only partially been declared void. The valid provisions of the order are subsisting law and ‘grant me the service benefits, specially the right to practice as an advocate in all courts’.
