That at least four of the most celebrated judges of the Lahore High Court were elevated much before they reached the magical age of 45 is not lost on the legal fraternity; Sardar Iqbal. J, Dr Nasim Hasan Shah. J, Mian Saqib Nisar. J and Asif Saeed Khan Khosa. J were all elevated to the bench before they reached the age of 45. In fact, Sardar Iqbal and Dr Nasim Hasan Shah were elevated even before they reached the age of 40. Likewise, in India, a law graduate is entitled to practice at the Supreme Court the minute he earns an LL.B degree and there is no requirement of any age as such. That the most brilliant of Ivy League graduates retire at 50 after very successful careers or that Mahendra Singh Dhoni, the most successful of captains was made Captain of Indian team at a very young age or that S.M. Zafar became Law Minister at 36. That in any case Mustafa Ramday has not been appointed as Advocate General and he has rather been appointed as Additional Advocate General and burdened with the additional charge of looking after the duties of Advocate General till the government appoints a regular Advocate General etc.” This is how I would respond to a jibe at Mr Ramday in a private sitting or on a tharra, as the case may be. But this tantamounts to missing the point and the point being legal needs to be demonstrated in its fullest.

I have known Mustafa Ramday since at least 20 years. I know for a fact he does not - and repeat does not - long for coveted slots and positions of authority because these have generally come to people around him deservedly and easily and without much ado, and will sooner or later also come his way. His pedigree, genes, familial roots, legal education, successful practice at the bar, standard and kind of clientele, and his sharp and keen intellect are such that make him conspicuous as a thoroughbred who would land up in a place of authority without having any element of cronyism, nepotism or favouritism to aid him.

Mustafa attended Atchison College Lahore, went abroad and successfully read for an LL.B degree, but could not complete his bar because of being religiously devoted towards his wife, who was unwell at the time. But what I like about him is that he never touted himself as a barrister, unlike many others amongst us in the legal fraternity who wear these prefixes with much aplomb but fraudulently and falsely. I also know for a fact that Mustafa was not willing at all to come to the office of the Advocate General. He kept resisting till the time that the government made it impossible for him to resist and, therefore, he relented.

On the legal and constitutional front the arguments raised in the article titled “Appointment of AGP: Legal or Not?” by Sami-ur-Rehman appearing in “The Nation” on July 21, 2013, are as divorced from reality and the law as is the author’s acquaintance with Mustafa whom he incorrectly states to be of 41 years of age. Mustafa is 37 years and seven months.

On more than one occasion the Supreme Court of Pakistan as also the apex court of India (the provisions relating to the appointment of Advocates General in both countries are similar) have had the opportunity of deciding the point whether a person, who is not qualified to be appointed a judge of a High Court, can be appointed as Advocate General of a province or not. Each time both these apex courts have held that it is, indeed, misconceived and unreasonable to assume that the disabilities with respect to the office of a judge of High Court apply to the office of the Advocate General.

In “PLD 1979 SC 991”, a seven-member bench of Hon’ble Supreme Court of Pakistan and, most recently, in “AIR 2010 SC 2550”, the Indian Supreme Court, have categorically and unequivocally held that the provisions applicable in the case of appointment of judges of High Courts do not apply in the case of appointment of an Advocate General.

It has been held that the argument that the provisions of Article 217 (1) of the Indian Constitution (similar to Article 193 of the Constitution of Pakistan, 1973) should be followed in the matter of appointment of Advocate General is wholly misconceived because the requirements of consultation with the respective Chief Justice of the High Court, the nomination being screened by a judicial and a parliamentary committee etc, in the matter of appointment of a judge of High Court, cannot be made a requirement in the matter of appointment of the Advocate General. That the appointment of the Advocate General is not governed by the aforesaid Article, which falls in a different chapter and a different part of the constitution. Therefore, the constitutional scheme for the appointment of Advocate General as well as for appointment of a judge of High Court is totally different.

A similar ratio is contained in “AIR 1952 Nagpur 330”, “AIR 1983 Rajisthan 149”, and “AIR 2004 Allahabad 133”. In all these judgments, it has been unequivocally held that no age of eligibility and no age of superannuation has been mentioned in the case of Attorney General or an Advocate General. The age applicable in the case of High Court judge does not apply to the office of the Attorney General or Advocate General.

Even otherwise the dictates of common sense, due process and fairness require that if the provisions about the guarantee of tenure of a High Court judge until the age of 62 is not available to the Advocate General because he holds office during the pleasure of the Governor, there is no reason why the same provision, or any other provision in relation to the office of a High Court judge construed as a disability, should be made applicable to him. The provision about the appointment of Advocate General (Article 140) does not limit the appointment or the duration thereof by reference to any age in the manner the constitution does in the case of appointment of a judge of High Court and, therefore, it is not permissible to import words into it. The special provision in the constitution must be given effect to without any limitation.

Since no age of any kind has been mentioned in Article 140 of the Constitution of Pakistan that deals with the appointment of Advocate General, it clearly implies that the requirement of age applicable in the case of a judge of High Court does not apply to the office of the Advocate General.

It may also be noted that all provisions of the constitution relating to the High Court judges such as those about remuneration, pension, and tenure of office do not apply to the post of the Advocate General.

In view of the above, even when the issue is no longer res-integra (alive), the effort on the part of Mr Sami-ur-Rehman borders on demeaning an important constitutional office and the person, who has been appointed to that office.

The writer is an advocate of the Supreme Court of Pakistan.