LAHORE, Jan 9: The Lahore High Court on Wednesday rejected a plea to stay the swearing-in of its three judges as judges of the Supreme Court and issued notices to the attorney-general for Jan 15 in a fresh petition challenging their appointment and an application seeking an interim injunction pending its hearing.
The petition was filed early on Wednesday by Advocate AK Dogar on behalf of the Pakistan Lawyers Forum following the abrupt dismissal of an earlier petition on Tuesday when the Forum secretary-general disowned it, saying he had resigned six months ago. The new petition was assigned to the same division bench comprising Justices Chaudhry Ijaz Ahmad and Mian Saqib Nisar.
As the lawyer pressed for a stay order on Wednesday, claiming that he had a strong prima facie case and that the balance of convenience was also in favour of an interim injunction, Justice Ahmad observed that the court could not pass an ex parte order in a petition for the writ of quo warranto. Mr Dogar said he was seeking suspension of an impugned federal government notification and not a direction against the judges concerned, who were yet to assume office.
Justice Nisar then pointed out that the petition alleged that the chief justice of the Supreme Court, who had since retired, was not consulted. How could the matter proceed without issuing a notice to the former CJ? he asked. Mr Dogar said his main grievance was not that the CJ was not consulted but that junior judges were elevated without assigning any justiciable reason for supersession of their senior colleagues. In fact, he added, the CJ had no right to be consulted on vacancies occurring after his retirement. It was for the incumbent CJ to act as the judicial consultee.
When the lawyer cited the Asad Ali case, Justice Nisar observed that while an interim injunction could be passed by the Supreme Court under Article 184(3) of the Constitution, no suspension order could be made by a high court under Article 199. Mr Dogar rejoined that the provision fully empowered the court to pass interim orders in exercise of its writ jurisdiction. A prior notice was required only in fiscal matters, in which an interim order could be made for six months. If a prior notice was needed in all matters, the Constitution would have said so.
Relying on the Asad Ali case, the lawyer said a two-member Supreme Court bench at Quetta first restrained the then chief justice, Justice Sajjad Ali Shah, from functioning and then issued a notice. The suspension order was passed on Nov 26, 1997, while the impugned notification was issued on June 5, 1994. The notice was issued for Nov 28, 1997.
Mr Dogar said he was seeking much less. He was not praying for a restraint order against any judge. If the operation of the Dec 26, 2001, notification was stayed and the petition was finally dismissed, the judges could take oath on any subsequent date. On the other hand, an irrevocable change might occur once the judges were sworn in. The stay plea would become infructuous and the nature of relief might also have to be altered. The high court might also feel embarrassed to deal with a matter involving Supreme Court judges.
He recalled that when Advocate MD Tahir challenged the appointment of Justice Mian Allah Nawaz as chief justice of the Lahore High Court, he was fined Rs50,000 but the subsequent events vindicated his claim that Justice Falak Sher was superseded.
The bench, however, observed that it could not pass an interim order that might have the effect of granting the final relief without hearing the other party.
ANOTHER PLEA: Advocate MD Tahir, meanwhile, moved an urgent application in his pending intra-court appeal praying for elevation of LHC Chief Justice Falak Sher and Senior Puisne Judge Mian Nazir Akhtar to the Supreme Court. He said both were judges of established seniority and calibre.
The Dec 26, 2001, Law Ministry notification, he prayed, should be set aside or amended to ensure adherence to the rule of seniority laid down in the 1996 Judges Case.
LAW SECRETARY: In a writ petition against the appointment of Justice Mansoor Ahmad as federal law secretary, the court issued notice to Deputy Attorney-General Khwaja Seeduz Zafar for Jan 15. Petitioner-lawyer Javed Iqbal Jafri submitted that the judge had admitted a petition challenging Justice Faqir Muhammad Khokhar’s appointment as law secretary when he was appointed to the office. He said both appointments were in violation of Article 175 of the Constitution calling for the separation of the judiciary from the executive.