KARACHI, May 4 No writ can issue to a superior court judge under Article 199 of the Constitution, the provincial government counsel and an amicus curiae submitted before a five-member bench of the Sindh High Court on Monday.

Advocates Aziz A. Munshi and Abdul Hafeez Lakho also stated that the process of consultation between judicial consultees was not justiciable and the only legal provision available to seek removal of a superior court judge was Article 209 of the Constitution through a reference to the Supreme Judicial Council where a judge may defend himself. If judges were made vulnerable to challenges under other articles, there would be no independence or dignity of courts and the situation might result in judicial anarchy, they told the bench, which consisted of Justices Mushir Alam, Khilji Arif Hussain, Gulzar Ahmed, Maqbool Baqar and Faisal Arab. The proceedings were adjourned to Wednesday for arguments by Attorney-General Latif Khan Khosa.

The bench is hearing a petition moved by the SHC Bar Association for issuance of writs of quo warranto (the legal authority whereby a public office is held) to Justices Bin Yamin, Syed Pir Ali Shah and Arshad Noor Khan for having been confirmed or given extension in December 2008 despite negative recommendations made by SHC Chief Justice Anwar Zaheer Jamali. Mr Munshi filed an application to cross-examine SHCBA Secretary Munir-ur-Rehman, who has signed the petition, about the source of his information. The application is pending and Deputy Attorney-General Nazar Akbar pointed out on Monday that no counter-affidavit had been filed in reply so far.

It has transpired during the proceedings that Justices Bin Yamin was confirmed and Justices Shah and Khan were given a six-month extension each by President Asif Ali Zardari on the recommendation of the then chief justice of Pakistan, Justice Abdul Hameed Dogar. Acting on the advice of Chief Minister Qaim Ali Shah, Governor Ishratul Ibad Khan had also recommended them on the basis of the record available with him.

Mr Munshi, a former attorney-general, said an inquiry made by him revealed that the president acted on the advice of the prime minister in requiring the federal law ministry to issue the impugned notifications. He said the consultation process was not subject to judicial review. About the 1998 Supreme Court judgment in Asad Ali's case, he said it was distinguishable as the qualification of the then chief justice (Justice Sajjad Ali Shah) as the senior-most judge of the apex court was under challenge. No interim order was then passed by the Supreme Court. In the instant case, it were not the qualifications of the three judges but the alleged difference of opinion between the two judicial consultees in respect of their confirmation or extension had been agitated by the petitioner association.

In any case, he said the powers of the Supreme Court under Article 184 (3) were much wider than those of the high courts under Article 199 of the Constitution. Judicial careers would be at stake if writs, including the writ of quo warranto, were allowed to be issued against judges, who could then easily be subjected to character assassination.

As for the controversy over the 'de facto' or 'de jure' status of the ex-CJ, Mr Munshi said, it was for the Supreme Court to settle the issue. He also pointed out that more or less identical matters in respect of two other additional SHC judges, Justices Zafar Ahmed Khan Sherwani and Rashid Ahmed Kalwar, were currently pending before the Supreme Court at the instance of the SHCBA through a direct petition and submitted that it would be in the fitness of things to wait for the SC verdict.

Mr Lakho earlier said any difference of opinion between the judicial consultees should not have been emphasised and the president should have tried to evolve a consensus before taking a decision. The consultation process was not open to scrutiny, he said.

DAG Nazar Akbar pointed out that the appointment of judges was not declared void straightaway in the 1996 Al Jihad case and the Supreme Court ordered that the appointments should be reconsidered.