KARACHI, April 29 The chief justice of Pakistan`s opinion in respect of superior court judges` appointment is not justiciable, a respondent Sindh High Court judge`s counsel argued before a five-member bench of the court hearing an SHC Bar Association petition against the retention of three judges on Wednesday.

If the opinion were made amenable to judicial review, Advocate Yawar Farooqui submitted on behalf of Justice Syed Pir Ali Shah, the independence of the judiciary would be undermined. The CJP was not required to give reasons for disagreeing with a high court chief justice or with other constitutional consultees, he told the bench, extensively quoting from the Supreme Court judgments in the cases of Al Jihad Trust, Asad Ali and the Supreme Court Bar Association.

The bench, headed by acting Chief Justice Mushir Alam and comprised of Justices Khilji Arif Hussain, Gulzar Ahmed, Maqbool Baqar and Faisal Arab, is hearing the SHCBA case against Justices Bin Yamin, Syed Pir Ali Shah and Arshad Noor Khan for having been appointed or given extension despite a negative opinion expressed about them by SHC Chief Justice Anwar Zaheer Jamali. All three belonged to the judicial service and were appointed additional judges in December 2007 for one year. While the first-mentioned was confirmed on the expiry of his one-year term in December 2008, Justices Shah and Khan were given a six-month extension each till June 2009. Citing the judges as respondents, the association seeks writs of quo warranto against them under Article 199.

Justice Shah`s counsel maintained that the CJP`s recommendation was binding and the SHC CJ impliedly accepted it by administering the oath to the respondent judges and then assigning them judicial work in pursuance of the impugned notification. A judge was not liable to be proceeded against under Article 199 of the Constitution. He could only be charged with misconduct by the Supreme Judicial Council under Article 209. In fact, a judge should not be issued a notice under any other provision of the Constitution. In the present case, he said, allegations were allowed to remain on record for three months when the petition was being heard by a division bench headed by CJ Jamali despite a reminder by the advocate-general that his (the CJ`s) own recommendations were the subject-matter of the dispute.

If Justice Jamali could not talk to the CJP, he could have broached the matter with the other constitutional consultees, the counsel said while replying to a query whether there was an `effective, meaningful and consensus-oriented` consultation between the two judicial consultees as contemplated by the 1996 SC judgment in Al Jihad case. The CJP is the `paterfamilias` of the judiciary and a high court chief justice is a `subordinate consultee` in the judicial hierarchy. The CJP may override a high court chief justice`s opinion but the latter cannot overrule the former. In fact, the recommendations are not meant to be made public. In two cases at least, it was a matter of months but the petitioner association deemed it appropriate to rush to the court.

Judicial officers, Advocate Yawar Farooqui maintained, had a legitimate expectancy to be elevated after executing judicial work for decades and once appointed additional judges, they had a legitimate expectancy to be confirmed subject to satisfactory discharge of their functions. The expectancy is a substantive right, which they should not be deprived of. Their work is supervised by the high court and in case of any misconduct, they can be proceeded against.

The proceedings will continue on Thursday.

Guantanamo Bay prisoner

The Sindh High Court asked the foreign secretary on Wednesday to submit a proper reply to the contempt application moved by the wife of a Guantanamo Bay prisoner within a week.

Applicant Farhat Paracha stated that the high court had passed an order in August 2006 asking the government to make efforts for the release and repatriation of her husband, Saifullah Paracha, and other Pakistanis detained by the US authorities at Gitmo. The government was also told to protect the interests of the detainees till their release. The foreign ministry was directed to furnish quarterly reports to the court and to the families of the detainees in this respect. However, the ministry sent only one report to her after six months of the order and nothing was known to her about her husband`s current condition and status. Since the ministry has failed to comply with the court order, its secretary should be charged with contempt, she said. A federal attorney submitted a reply on behalf of Foreign Secretary Salman Bashir, which conceded that the ministry had been negligent in the matter. The foreign secretary apologised to the court unconditionally. As the case came up before a division bench comprising Justices Nadeem Azhar Siddiqui and M. Karim Khan Agha, Advocate Nisar A. Mujahid, the applicant`s counsel, maintained that the reply was inadequate as it was not accompanied by an affidavit. Again, there was no report on Saifullah Paracha`s condition and the efforts being made by the government for his repatriation.

The bench asked the federal attorney to ask the respondent secretary to furnish a proper reply along with a report on efforts being made for Paracha`s repatriation within a week.

Uniform curriculums

Another bench comprising Justices Bin Yamin and Malik Muhammad Aqil issued notices to the federal education ministry and the provincial education department in a petition seeking uniform curriculums and syllabuses at school, college and university levels throughout Pakistan.

Petitioner-lawyer Islam Hussain submitted that the education system, if at all there was one, was creating class distinction. Different curriculums, text books and mediums of instructions were prescribed in different provinces and within one province by different institutions. There was no comparison between the quality of education provided by various institutions and chains of schools and colleges and the educational facilities available at public institutions. `Political barons` have converted education into business and huge profits.

The petitioner also sought directions for trained teachers, laboratories, libraries and sports facilities at all institutions even in the remote areas.

Notice to KESC

Justice Sajjad Ali Shah, meanwhile, issued notices to the Karachi Electricity Supply Company and the builders for April 30 in a suit instituted by the residents of Al Habib Arcade, Jam Street, Garden West. The plaintiffs submitted through Advocate Saathi M. Ishaq that they purchased shops and flats in the complex years ago and paid charges for a regular electricity supply connection to the builders. However, the company supplied a temporary connection and severed it on April 4, allegedly after a dispute with the builders.

The plaintiff residents said they had paid all their dues for the supply of electricity and installation of meters. They were not responsible if the builders failed to deposit the charges with the company. They apprehended that the company staff and the builders have deprived them of the utility connection in complicity with each other.

Meanwhile, a division bench deferred announcement of its order on counter cases moved by the KESC and its workers` unions in respect of the right of contract labour to form unions and vote in the election of the collective bargaining agent.