Justice Sheikh elevated to Supreme Court sans consent

For second time in a row, JCP decides the matter with a vote of 5 to 4

ISLAMABAD:

With a vote of 5 to 4, the Judicial Commission of Pakistan (JCP) has nominated Sindh High Court (SHC) Chief Justice Ahmed Ali Sheikh to the Supreme Court as an ad hoc judge for one year.

However, Attorney General for Pakistan (AGP) Khalid Javed Khan has supported the nomination subject to the consent of Justice Sheikh, who has already communicated his unwillingness to assume the position.

Sources revealed to The Express Tribune that at the JCP meeting on Tuesday, Chief Justice of Pakistan Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Minister for Law Dr Farogh Naseem voted for nominating the SHC chief justice to the SC without his consent.

Justice Qazi Faez Isa, Justice Maqbool Baqar, Justice (retd) Dost Muhammad Khan and Pakistan Bar Council (PBC) representative Akhtar Hussain, however, strongly opposed the nomination, contending that a high court chief justice cannot be elevated as an ad hoc judge of the apex court.

They argued that under Article 182 of the Constitution only a high court judge can be appointed as the SC's ad hoc judge. The AGP in his three-page written opinion said the SHC chief justice could be appointed as an ad hoc judge subject to his consent.

Also Read Crisis as SHC CJ refuses elevation to apex court

The sources said Dr Farogh Naseem stated that Article 206 of Constitution would be applied in case the SHC chief justice refuses to become an ad hoc judge of the apex court.

Article 206 says: “Judge of a high court who does not accept appointment as a judge of the SC shall be deemed to have retired…and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as judge and total service, if any, in the service of Pakistan".

However, other JCP members including the AGP did not agree with the law minister's contention.

The sources said if SHC chief justice refuses to attend sitting of the SC as ad hoc judge then there will be no misconduct. Despite his refusal, he will work as the SHC chief justice.

A senior lawyer believes that a crisis will arise in case the law ministry issues a notification regarding ad-hoc appointment of the SHC chief justice without his consent.

Similarly, a crisis may emerge if the ministry issues a notification about appointing Justice Irfan Saadat as the SHC acting chief justice and the incumbent chief justice refuses to accept his ad hoc appointment.

“If such notifications are issued then they will be challenged in the court of law. However, the minutes of the JCP meeting will be significant,” he said, adding that the government may issue such notification.

It is learnt that Justice Sheikh has written another letter to the JCP members, in which he, referring to media reports, has thanked them that they acknowledged that his ad hoc appointment will be made without his consent. He also clarified that he never gave consent for his ad hoc appointment.

According to sources, Justice Qazi Faez Isa and a senior judge exchanged harsh words in the meeting.

Also read: JCP to consider SHC CJ’s elevation

Commenting on the JCP decision, former additional attorney general Waqar Rana said it is a matter of grave concern that some of the recent nominations by the JCP lack consensus; rather there were strong disagreements which ended up in public domain.

“It is high time that this new method of appointments is reviewed. Moreover the taboo of appointments from the bar needs to be broken.

“If the appointment to the SC is a fresh appointment and that is supported by the text of the Constitution and seniority is not a guiding principle then it will not be wrong to suggest there are several advocates who are better suited for appointments than a whole lot of high court judges,” he said.

Interestingly, the cases related to ad hoc appointments are not referred to the Parliamentary Committee on Judges Appointment for approval.

AGP opinion

Referring to Article 200 of Constitution, the AGP said consent is not mandatory for appointment of ad hoc judges. However, he said, there is a need to consider the constitutional scheme and the principle of independence of judiciary and judges.

He said in the absence of a clear language of the Constitution, compelling a sitting chief justice of a high court to attend the sittings of the Supreme Court without his consent will create a highly undesirable precedent, which might have far reaching implications for future judiciary.

The AGP said the Constitution does not provide specific consequences of such refusal as to attend the sittings of the SC as an ad hoc judge of the apex court.

“When majority of the JCP members were unwilling to accept his elevation as a permanent judge of the Supreme Court, he proposed his elevation as ad hoc judge of the apex court for two reasons.

“Firstly, there is no Sindhi speaking judge in the Supreme Court. Secondly, many injustices were committed with Sindhi people in various national institutions including the judiciary,” he said.

The AGP requested the SHC chief justice to reconsider his position in the interest of the people of Sindh.

The Sindh High Court Bar Association representative appreciated AGP Khalid Javed Khan for his bold stance against ad hoc appointment of chief justice without his consent.

PBC’s reaction

PBA Vice Chairman Khush Dil Khan strongly condemned the nomination of the SHC chief justice without his consent and declared it a violation of Article 182 of the Constitution.

“The legal fraternity feels that a terrible example is being set through this ad hoc appointment and it would further weaken the judicial system,” he said.