Opinion: The discord within?

The institution of judiciary has lent itself into controversy once again. Just when the controversy arising from the recent elevation of an Hon'ble Sindh High Court (SHC) judge to Supreme Court Pakistan (SCP), was about to die down, the Judicial Commission of Pakistan (JCP) has taken a step that could potentially lead to a constitutional crisis. In its meeting on 10th of August, the nine-member JCP, by 4-4, decided for and against the appointment of Chief Justice (CJ) Sindh High Court (SHC) as an ad hoc Supreme Court judge as envisaged under Article 182 of the Constitution amidst against the backdrop of SHC CJ's refusal to such move.

However, the ninth respectful member of JCP and the one who admittedly coined the idea, the Attorney General of Pakistan (AGP) supported the “temporary arrangement” of bringing the CJ SHC to SCP only if His Lordship reconsiders his decision.

What follows next would have far reaching effect ranging from a legal to a political, to an administrative and a judicial point of view. Firstly, as per the Article 182, for a Judge of the high court to be appointed as an ad hoc SCP judge, the consent of the chief justice of that high court is mandatory. More importantly, the five-member bench of the Honorable SCP held in Al Jehad Trust V Federation of Pakistan (1996 PLD 324 SC), that such an appointment could not take place if the permanent vacancy or vacancies is/are remain to be filled.

As per the Honorable SCP in Al- Jehad, the Constitution does not recognize an ad hoc judge of the Supreme Court to be the judge of the SCP. Moreover, the Constitution is silent with regard to the appointment of the chief justice of any high court as an ad hoc judge of the Supreme Court of Pakistan. By virtue of his office, a CJ of the high court is different from other high court judges therefore, does the Constitution provide for special treatment in His Lordship's case?

This particular silence in the Constitution gave rise to three diverse interpretations. The distinguished AGP is of the belief that the high court chief justice's consent is necessary as His Lordship is best placed to determine if the high court would not be burdened in case of an appointment of the other judge of the high court as an ad hoc judge.

The AGP went on further to contend that since this is a temporary arrangement and not an appointment, the Hon'ble CJ SHC would still remain a high court judge and therefore a chief justice. Furthermore, in the backdrop of ambiguity in the Constitution, in all situations, the requirement of the high court chief justice's consent exists.

Apparently, the four JCP members opposed such a move on the grounds that the scheme of Article 182 does not provide for such an appointment in case of the Hon'ble chief justice of the high court. Perhaps, giving force to the argument that the chief justice of provincial high court should not deserve a treatment lesser than being elevated to SCP against a permanent vacancy.

The other interpretation of the Article 182 which appears to have influenced the other worthy four members of the JCP is that even in case of absence of the SHC CJ's consent for his own appointment, the matter would still move forward. However, arguably, such step may not bode well among the sitting or future CJs of high courts as it may tantamount to a "forceful" appointment as an ad hoc judge of the SCP and consequently, creates an atmosphere of uncertainty and insecurity of tenure.

Now that the CJ SHC has, reportedly, communicated his refusal once again for the post the JCP's 10th August decision, what’s next? Does the Constitution envisage his forceful retirement? This was hinted by Federal Minister of Law, Dr. Farogh Nasim in the last meeting of the JCP. The Article 206 provides for the retirement in case of a refusal by the Honorable high court judge for his/her appointment as a “judge of the SCP”. Since, as the AGP has admitted, this is not an appointment as permanent or acting judge of SCP in terms of the relevant provisions of the Constitution respectively, therefore it could not be called as ELEVATION to the SCP. By virtue of Article 260, the judge of SCP includes a person “acting” as a judge of the SCP but does not include an ad hoc judge of the SCP. Per se, the chances of consequences envisaged under Article 206 to ensue from refusal of SHC CJ to give consent, remain bleak.

Will the ministry, nevertheless, issue notification for bringing the SHC CJ as ad hoc judge to SCP against his wishes? Would the recurring refusal tantamount to misconduct for it to be determined by the Supreme Judicial Council forum as per Article 209? The Executive cannot afford to open another “contesting front" with the Judiciary when the questions regarding its own competence and delivery are being raised. Whatever the case may be, it is highly probable that the matter may land before a court of law, furthering the apprehensions of lobbying and grouping within. Focusing on the current situation, this is for the first time that with regard to the issue of appointment, reports are emerging of disagreement not between the judiciary and other institutions but within itself.

The JCP, reportedly, pitched an ad hoc arrangement so that “comity" which is missing amongst senior judges of SHC is brought back on track. Let us assume that the current SHC CJ ends up in the SCP via this “arrangement”, will the SHC be led by an Acting CJ? From a bare reading of the letter written by the AGP to JCP and the language of Article 196, it appears to be the case so.

Article 196 mentions that in case either the CJ of a high court is absent or is unable to perform the functions of the office for any other reason, the President shall appoint an acting chief justice. Should this not come in the way of other deserving judges of the high court, aspiring to become a permanent chief justice of the SHC? Will this not affect the administration and management of the SHC? This, as it seems, widens the gap of “comity" which it apparently resolves to narrow. As per Al Jehad Trust, the Acting CJ is not a consultee for any of the purposes of consultation required in the Constitution. Hence, such an arrangement would indirectly result in the appointment of an acting CJ for a long period which militates against the concept of independence of judiciary. Therefore, a constitutional crisis cannot be ruled out.

Alternatively, the Article 181 expressly allows a high court judge to be appointed as an acting judge for the SCP even when there is a permanent vacancy. An acting judge of the SCP is nevertheless considered as a judge of the SCP in terms of the Constitution. In presence of such provisions, the ad hoc arrangement may not sail through without attracting criticism from Bar and may be taken in bad light by a certain section of the society.

Therefore, in light of the imminent vacancy that might fall before this gets published, the exercise should be or have been for the elevation of the high court judge who is qualified for appointment as permanent judge or acting judge of SCP. As per AGP, the ad hoc “arrangement” would counter the sentiments that people of Sindh are being left out. In such a case one wonders why such an ad hoc arrangement of bringing any other SHC judge who is qualified under Article 182 would not cater to such sentiments. Now as the SHC CJ has reiterated his stance, one could only hope that the ad hoc arrangement gets shelved. The unity and independence of Judiciary is the need of the hour. Any step that may have the slightest probability of creating fissures within the Bench and disharmony between Bench and Bar should be avoided at all cost. 

The writer is a lawyer based in Karachi