The Federal Ministry of Law will issue a notification regarding the appointment of Sindh High Court (SHC) Chief Justice Ahmed Ali Sheikh as an ad hoc of the apex court despite the fact that Justice Sheikh has refused to accept this elevation.
A senior government functionary revealed to The Express Tribune that the law ministry will issue the notification on Monday. With a vote of 5 to 4, the Judicial Commission of Pakistan (JCP) on August 10 nominated the SHC chief justice to the Supreme Court as an ad hoc judge for one year.
Attorney General for Pakistan (AGP) Khalid Javed Khan had supported the nomination subject to the consent of Justice Sheikh, who has already communicated his unwillingness to assume the position.
However, according to the government functionary the Chief Justice of Pakistan (CJP) can nominate a person as an ad hoc judge in consultation with the JCP under Article 182 of the Constitution.
Article 182 says: "Appointment of ad hoc judges if at any time it is not possible for want of quorum of judges of the Supreme Court to hold or continue any sitting of the court, or for any other reason it is necessary to increase temporarily the number of judges of the Supreme Court, the Chief Justice of Pakistan in consultation with the JCP as provided in clause (2) of Article 175 A, may, in writing…
“a. with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or
“b. 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, to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary.”
He said in view of the above mentioned constitutional provision ‘meaningful consultation’ has already taken place between the CJP and the JCP. The official made it clear that voting among the JCP members is also not required for the appointment of an ad hoc judge.
However, he agreed that there will be no legal consequences in case the SHC chief justice refuses to attend sittings of the apex court as an ad hoc judge.
Regarding the notification for appointing SHC senior puisne judge, Justice Irfan Saadat, as the SHC acting chief justice, he said this notification will not be issued together with the notification about the SHC chief justice’s nomination to the apex court.
A senior lawyer said the notification regarding acting SHC chief justice will be issued only when the incumbent SHC chief justice leaves his post and accepts to become an ad hoc judge of the top court.
Sindh High Bar Association (SHCBA) President Salahuddin Ahmed, however, disagreed with the senior government functionary's interpretation of Article 182 of the Constitution.
Also read: Why JCP didn’t choose senior SHC judges
"As per Al Jehad case, such consultation should be meaningful, purposive and consensus oriented.
“If the majority of the JCP feels that a person cannot be so asked at the moment [due to his lack of consent or for other reasons]; the CJP is not free to disregard with that opinion [at least without strong and compelling reasons and I cannot presently envisage what such reasons could be]," he said.
The SHCBA president stated that Article 182 (b) mandates the consent of the chief justice of the province “which is not present in this case”.
"If chief justices of high courts can be removed and made ad hoc judges merely on the say of the CJP – it will amount to a violation of the constitutional protection given in Article 209 of Constitution.
“Moreover, it will destroy the constitutional and operational independence of all high courts in the future and establish a judicial hegemony of the CJP," Ahmed said.
According to the minutes of JCP meeting of August 10, the AGP did not raise any legal question about appointment of the SHC chief justice as an ad hoc SC judge without his consent. However, he suggested that it is undesirable for other reasons.
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.
Read more: JCP to consider SHC CJ’s elevation
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, the AGP did not agree with the law minister's contention.
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