Crisis has emerged in the process of elevation of the Sindh High Court judges to the Supreme Court as Chief Justice Ahmed Ali Sheikh has refused to accept his promotion as an ad hoc judge of the apex court.
Chief Justice of Pakistan Gulzar Ahmed already summoned a meeting of the Judicial Commission of Pakistan (JCP) on August 10 to consider the nomination of SHC CJ as an ad hoc judge of the Supreme Court.
Sources revealed to The Express Tribune that the SHC CJ has sent a letter to the JCP wherein he expressed his unwillingness to perform as an ad hoc judge of the apex court.
However, he is willing to become a permanent SC judge. It is learnt that a copy of the SHC CJ's letter has also been received by all nine JCP members.
Sources claimed that the SHC CJ wrote two letters to the JCP. Sources said that earlier, one of the members had informally offered the SHC CJ to become Federal Shariat Court (FSC) chief justice but he recused himself.
Later, two JCP members asked about his consent regarding appointment as an ad hoc judge of the apex court but that too he declined. On the other hand, there are reports that the SHC CJ had given consent to the CJP, therefore the JCP’s meeting was scheduled for August 10.
However, sources revealed to The Express Tribune that despite his recusal to become an ad hoc judge, the JCP’s meeting will be held on August 10.
A section of the lawyers, which is supporting the JCP regarding elevation of judges to the SC, believes that under Article 182 of the Constitution, consent of the chief justice is required regarding elevation of a relevant judge.
They contended that the consent of a relevant judge is not required for his ad hoc appointment to the apex court. According to Article 182 (b) of the Constitution, “With the approval of the president and with the consent of the chief justice of a high court, require a judge of that court qualified for appointment as a judge of the Supreme Court.”
In view of the above, a section of the lawyers says that the SHC CJ cannot refuse to perform as an ad hoc judge. Other section of lawyers is expressing serious concern over the elevation of the SHC CJ to the SC without his consent.
They are wondering whether the JCP is making this precedent for elevating every “independent high court chief justice” to the apex court without his consent.
A Sindh High Court Bar Association representative said that if the commission does, it will be a horrible precedent for future.
They say that Article 282 (b) may be read in the manner that any chief justice of high court could not be elevated to the apex court.
Legal experts urge the CJP that in order to avoid controversy, the JCP meeting should be cancelled.
They say that if the commission approves nomination of SHC CJ then it will have far-reaching political implications.
During the last JCP meeting, one member Justice Maqbool Baqar pointed out that an ethnic issue has sparked in the local bars, therefore, the JCP should be careful.
Justice Bandial pointed out that the SHC CJ had not penned any “reported judgment” in the last three years because of the burden of administrative work. “The commission cannot overlook a deficiency nor relax the criteria for nominating a permanent judge to the Supreme Court,” he said.
He added that the SHC CJ deserved a chance to be elevated to the SC for many reasons including the fact that he was an ethnic Sindhi. “He can focus on work here (the SC) to meet the criteria for appointment on any of three vacancies from Sindh arising in the next six months.”
Interestingly, it is learnt that unlike the past practice, the SHC CJ has now fixed an important case before his bench from next week. A representative of the SHCBA said that the disposal rate of the SHC CJ is not bad. SHC CJ Ahmed Ali Sheikh can perform as a high court judge until October 2023.
The JCP on July 28 nominated Justice Mazhar with a vote of five to four majority amid protest by the PBC – the apex regulatory body of the country’s lawyers. The PBC has already opposed any ad hoc appointment in the apex court.
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