LAHORE, Jan 15: A division bench of the Lahore High Court admitted on Tuesday a writ petition challenging the appointment of junior LHC judges to the Supreme Court and issued notices to the respondent federal government and the judges for Feb 25.

Petitioner-lawyer AK Dogar did not press for the interim relief of suspension of the elevation notification of Dec 26, 2001, as the respondent judges had already been sworn in and were functioning since Jan 10, 2002. As he had warned earlier, he said, a high court could not restrain Supreme Court judges from functioning.

Attorney-General Makhdoom Ali Khan earlier stated at the bar that the appointments had been made strictly in accordance with the written recommendation of the then chief justice, Justice Irshad Hasan Khan. Justiciable reasons have to be given only when the president or the federal government differ with a judicial consultee. In the present case, the CJ’s advice or opinion was treated as binding by the executive in keeping with the Supreme Court judgments in Al-Jihad and other cases.

Asked by the bench whether the executive was bound by the CJ’s opinion even if he recommended appointment of a wholly unqualified lawyer or judge, the AG submitted that the question was purely hypothetical. It was inconceivable to him that the chief justice of Pakistan would, for instance, recommend a lawyer with less than 10 years of legal practice for appointment as a high court judge or a high court judge with less than five years’ experience for elevation as a judge of the Supreme Court.

He said while the government could differ with a judicial consultee on the suitability of a lawyer on the basis of intelligence reports, no such disagreement was possible in respect of incumbent high court judges. The judicial consultees had almost a final and exclusive say in elevation of working judges and their opinion was not justiciable. The AG said that executive had a very restricted role in the appointment or elevation of judges after the 1996 Judges Case verdict. It cannot ignore a judicial consultee’s opinion and can differ with it only on the basis of justiciable material or reasons. The acceptance of the CJ’s opinion is not justiciable and cannot be judicially reviewed. He offered to produce the entire record relating to the latest SC appointments but the bench took his word for it.

The AG earlier informed the bench, which comprised Justices Chaudhry Ijaz Ahmad and Mian Saqib Nisar, that five identical petitions have been moved at the principal seat and the Bahawalpur and Rawalpindi benches of the LHC and requested that all be heard together. The bench observed that it had only one petition before it. At the Bahawalpur bench, Justice Iftikhar Husain Chaudhry admitted an identical petition, issued notices to the respondent for the first week of February and desired that it be heard by five senior judges. Justice Javed Buttar also issued notices in a petition filed at the Rawalpindi bench and referred it to Chief Justice Falak Sher.

At the outset, petitioner-lawyer AK Dogar formulated his points, called mainly from the Supreme Court judgments in Al-Jihad and Asad Ali cases.