KARACHI: A judge of the Sindh High Court on Monday sent a matter involving a constitutional question to the chief justice of Sindh for formation of a division or a larger bench to decide as to whether a retired high court judge could appear before the same court as a lawyer despite receiving pensionary benefits.

A single-judge bench of the SHC headed by Justice Nazar Akbar referred the case to the chief justice of the Sindh High Court after a two-judge bench had suspended its two interim orders in which it had issued notice to the attorney general and sought record of pensionary benefits being extended to senior counsel and former high court judge Rasheed A. Razvi.

The issue rose during the hearing of a civil case when the lawyer for one of the litigants had objected to the appearance of Mr Razvi as a counsel for the defendant in the same high court from where he had been receiving pension as a retired judge.

On May 24, the single-judge bench had also framed some questions regarding interpretation of Article 207(3)(b) read with Article 270AA(3)(b) of the Constitution as well as Chief Executive Order 5 of 2000 published in pursuant to infamous Provincial Constitution Order (PCO) 1999 and a judgement of apex court in the case of retired Justice Shahid Anwar Bajwa.

Thereafter, an appeal was filed before a two-judge bench of the SHC and against both orders of May 24 as well as May 18, in which explanation was called from appellant.

The lawyer for appellant argued that the single-judge bench order was beyond the scope of Section 9 of the Code of Civil Procedure 1988 and the explanation sought from the appellant was also beyond the scope of the suit proceeding.

After hearing arguments of the lawyer for the appellant, a two-judge bench of the SHC on May 28 suspended the operation of both the orders till next hearing and also issued notices to the attorney general of Pakistan and the advocate general of Sindh.

When the single-judge took up the matter again on Monday, the lawyer for Mr Razvi informed it about the order of the division bench.

Justice Nazar was of the view that clause (3)(b) of Article 270AA of the Constitution prima facie cannot be interpreted to have any effect of “suspending” the constitutional provisions contained in Article 207 (judge not to hold office of profit, etc) of the Constitution.

He further observed that appeal was continuation of original proceedings though it had been preferred before any meaningful findings on any of the proposed constitutional issues and the high court has to answer these questions, adding that it would be more advantageous if the issue can be heard by a bench of two or more judges on constitutional side.

The lawyer for Mr Razvi in the appeal had also contended that the appellant had not taken oath under the former military dictator’s PCO in 1999 and it was the Chief Executive Order-5 under which he was allowed to plead and act as an advocate in any court.

The counsel further submitted that the appellant while exercising his right under clause (3)(b) of Article 270AA had moved an application to the chief justice of the SHC for grant of pensionary benefit which was accepted.

Published in Dawn, June 2nd, 2021