The Judicial Commission of Pakistan (JCP) will meet today (Tuesday) to consider nomination of Sindh High Court (SHC) Chief Justice Ahmed Ali Sheikh to the Supreme Court as an ad hoc judge despite Justice Sheikh’s refusal to accept such elevation.
The SHC chief justice on August 5 wrote a letter to the JCP to dispel any impression that he has any stage agreed to or given consent to attend the sittings of the Supreme Court as an ad hoc judge.
However, he clarified that he had no objection to his nomination as a permanent SC judge.
Sources revealed to The Express Tribune a majority of the JCP members believe that under the Constitution, consent of a chief justice is not required for his elevation as an ad hoc judge.
A JCP member said bars oppose ad hoc appointment of the SHC chief justice to the SC just for the sake of their political interests while one of the lawyer groups will not offer much resistance to the move.
It is learnt that few representatives of superior bars are already upset over rejection of MNA Ali Wazir's bail petition by a SHC division bench led by CJ Ahmed Ali Sheikh.
One section of lawyers is also unhappy with the SHC chief justice regarding PPP lawmaker Khursheed Shah’s bail matter.
Read Crisis as SHC CJ refuses elevation to apex court
A JCP member said if the incumbent SHC chief justice is elevated as an ad hoc judge then an acting SHC chief justice will have to be appointed. He contended that an acting chief justice cannot initiate nominations for new additional judges.
“In case of the SHC chief justice’s ad hoc appointment, a constitutional crisis may emerge.”
He said JCP member Justice Mushir Alam should also not take part in the JCP meeting taking place just seven days before his retirement. “How will the decision be implemented, if the commission approves the ad hoc appointment of the SHC chief justice without his consent?” he asked.
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 believes that the SHC chief justice cannot refuse to perform as an ad hoc judge.
However, bar councils from the province of Sindh – the Sindh Bar Council, the Sindh High Court Bar Association and the Karachi Bar Association – have expressed “strong grievances and reservations” over nomination of Justice Sheikh to the Supreme Court as an ad hoc judge.
A notification issued on Monday said Article 182 of the Constitution does not allow appointment of a provincial high court’s chief justice as an ad hoc SC judge for only retired judges of the top court or a judge of a high court can be appointed to such a position.
It said even if the chief justice of a high court is conceived as “a judge”, the consent of the chief justice of the relevant provincial high court is needed for such elevation under Article 182(b).
The notification said SHC Chief Justice Ahmed Ali Sheikh has already expressed his lack of consent to joining the Supreme Court as an ad hoc judge and if he is appointed to the SC against his will, such an act will set a terrible precedent and permanently destroy independence of high courts.
“A needless constitutional crisis is being created merely because of the JCP’s [Judicial Commission of Pakistan] insistence [on] not following the seniority principle,” it added.
At the last JCP meeting, one member – Justice Maqbool Baqar – pointed out that an ethnic issue had sparked in the local bars and the JCP should be careful.
Read more JCP to consider SHC CJ’s elevation
Justice Bandial had pointed out that the SHC chief justice 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 chief justice 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, the JCP on June 28 approved the nomination of a junior SHC judge, Muhammad Ali Mazhar, to the SC amid a protest by the apex regulatory body of lawyers, the Pakistan Bar Council (PBC).
The JCP had approved the nomination of Justice Mazhar, fifth in SHC seniority, with five members endorsing the move and four opposing it. It was the first time in the JCP history that four members of the commission opposed elevation of any judge to the apex court.
Sources had revealed to The Express Tribune that Justice Qazi Faez Isa, Justice Maqbool Baqar, Justice (retd) Dost Muhammad Khan and PBC representative Akhtar Hussain strongly opposed the nomination of Justice Mazhar to the apex court on several grounds.
WITH ADDITIONAL INPUT FROM NEWS DESK
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