Court be consulted in law officers’ appointment: PHC

PESHAWAR: In order to end political appointments in the Khyber Pakhtunkhwa advocate general’s office, the Peshawar High Court (PHC) has ruled that appointment of law officers shall be made in consultation with the chief justice of the high court.

“The provincial government has been authorised to appoint law officers in the province, but it would be not improper or unreasonable that while appointing law officers, the chief justice of the High Court shall be consulted, in order to select and appoint best lawyer, in larger public interest and to remove all sorts of political consideration (if any) in the matter of appointment of law officers,” a PHC division bench ruled in a detailed judgement.

A division bench comprising Justice Ikramullah Khan and Justice Muhammad Ibrahim Khan passed the judgement in a writ petition challenging appointment of Advocate General, Khyber Pakhtunkhwa and vires of the Khyber Pakhtunkhwa Act 2014 regarding appointment of the law officers.

The court explained that the additional advocate general on behalf of the respondents also apprised the court that relevant amendment in the Khyber Pakhtunkhwa Appointment of Law Officers Act, 2014 is under consideration, in order to bring useful and purposeful amendment to include the worthy registrar of this court to be a consultant body in matter of appointing of law officers. “Irrespective of the legal proposition as to whether a high court could direct the legislature to amend a law, we would appreciate in best interest of public that in matter of appointment of law officers, political consideration at all be vindicated and it would be only possible if to solicit the matter of appointment by meaningful consultation with the chief justice of the high court,” the bench ruled in the judgement.

However, the court dismissed the writ petition filed by a lawyer, Azizuddin Kakakhel up to the extent of the appointment of the advocate general of Khyber Pakhtunkhwa. However, it gave the ruling that appointment of law officers shall be made with the consultation of the PHC chief justice to end political influence in these appointments.

The petitioner challenged the appointment of the Advocate General made by the governor Khyber Pakhtunkhwa through a notification issued on August 30, 3018, claiming that he was not eligible to be appointed on the post as he was overage and was earlier removed from the office by the provincial government.

The advocate general’s counsel Abdul Latif Yousafzai argued that the appointment of the respondent was legal and justified and there was no legal infirmity in his appointment as he was the most senior advocate of Supreme Court having a legal practice and experience of more than 44 years. It was also argued that no retirement age has been prescribed by any rule, law or Constitution for the office of advocate general. It was explained that the removal of the respondent advocate general from the office by the caretaker government was not in pursuance of any misconduct or disciplinary proceeding but was done on account of change of the cabinet and in view of the powers of the governor of KP in terms of Article 140 of the Constitution. It was argued that such removal carried no stigma to disqualify him to be an advocate.

The court judgement stated while responding to another contention of the petitioner that the respondent had been appointed as advocate general without consultation with the PHC chief justice: “There is no such provision prescribed under Article 193 that the Advocate General of a province shall be appointed by the governor with consultation of the chief justice of a high court.” With regard to the petitioner’s plea wherein the vires of the Khyber Pakhtunkhwa Act 2014 was challenged, it was pointed out that the Khyber Pakhtunkhwa Appointment of Law Officers Act 2014 (Amendment Act, 2018) was passed by the Provincial Assembly of KP in accordance with the relevant provisions of the Constitution.