KARACHI, Jan 9: The Sindh High Court Bar Association challenged on Friday all appointments and reappointments in the superior judiciary after Nov 2, 2007, as ‘unlawful’ for having been made without the concurrence of “the de jure chief justice, Justice Iftikhar Mohammad Chaudhry.”
Without prejudice to the generality of the above-stated ‘legal position’, a petition moved by the SHCBA through its secretary, Advocate Munir-ur-Rehman, sought writs only against Justices Bin Yamin, Syed Pir Ali Shah and Arshad Noor Khan because they were either confirmed as permanent judges or given a six-month extension as additional judges in disregard of the negative opinion rendered by the incumbent SHC chief justice, Justice Anwar Zaheer Jamali, on more counts than one.
All three were elevated from the judicial service as SHC additional judges on Dec 14, 2007. While Justice Bin Yamin was confirmed as a permanent judge on expiry of his one-year tenure as an additional judge, Justices Syed Pir Ali Shah and Arshad Noor Khan were given a six-month extension each as additional judges.
Dr Qamaruddin Bohra, another judicial officer appointed additional judge on Dec 14, 2007, was neither confirmed nor given an extension and reverted to the subordinate judiciary on Dec 14, 2008, though, according to the SHCBA petition, he was recommended for confirmation by CJ Anwar Zaheer Jamali. About Justice Agha Rafiq Ahmed Khan, another judicial officer elevated on Dec 14, 2007, the petition said he was recommended by the CJ for confirmation and not for ‘reappointment’. Besides, he was given the benefit of his previous 14-month stint as an SHC judge in 1994-96 in contravention of the Supreme Court judgment in Al Jehad case of 1996.
The petitioner said the opinion expressed by the CJ enjoyed the privilege of confidentiality but it had somehow “come within its knowledge through reliable sources” and its disclosure was crucial to the determination of the issues raised by it.
The petition said the proclamation of emergency on Nov 3, 2007, was patently illegal as the army chief had no authority under any law or the Constitution to declare a state of siege. It was, in fact, imposition of martial law aimed at subjugating the judiciary. A Supreme Court bench headed by Chief Justice Iftikhar Mohammad Chaudhry set aside the proclamation and the subsequent validation by another SC bench in Tikka Iqbal case had no legal effect.
Chief Justice Iftikhar, the petition said, was relieved following the imposition of the emergency and had not since been restored. All appointments to the judiciary and ‘reappointments’ after the resignation of Gen Pervez Musharraf as the president of Pakistan, were, therefore, illegal because they were not made after consultation with the ‘de jure CJ’ as contemplated by the Constitution.
The petition quoted extensively from the Al Jehad case verdict and other SC judgments to assert that the opinion of ‘judicial consultees’, that is the chief justices of the high courts and of the apex court, was binding in the matter of superior court appointments and could be disregarded by the executive only for justiciable reasons to be recorded in writing.
The petition cites three SHC judges as respondents through the court’s registrar and calls for writs of quo warranto against them. It requests the court to order production of the record of consultations held among the various ‘consultees’ by the federal law ministry and also seeks a writ of prohibition restraining the executive from making fresh appointments to the high court pending its hearing and disposal.
According to the SHCBA secretary, the petition is likely to be taken up by a division bench on Monday.