ISLAMABAD: The Judicial Commission of Pakistan (JCP) Tuesday approved the elevation of Sindh High Court (SHC) Chief Justice (CJ) Ahmed Ali Sheikh as an ad hoc judge of the Supreme Court for a period of one year, which was protested by the Pakistan Bar Council (PBC) and bar associations.
A JCP meeting was held here at the Supreme Court with Chief Justice Gulzar Ahmed in the chair as the chairman of the commission. The meeting, which was attended by members of the commission including senior four SC judges including Justice Mushir Alam, Justice Umer Ata Bandial, Justice Qazi Faez Isa, Justice Maqbool Baqir, with Justice (retd) Dost Muhammad Khan, Attorney General Khalid Javed, Federal Law Minister Farogh Naseem and Akhtar Hussain, a member from Pakistan Bar Council. Sources said after deliberations, the commission approved SHC CJ as an ad hoc judge of the SC by a majority of 5 to 4, but subject to his consent.
CJ Gulzar Ahmed, Justice Mushir Alam, Justice Umer Ata Bandial, Law Minister Farogh Naseem, AG Khalid Javed supported the appointment, while Justice Qazi Faez Isa, Justice Maqbool Baqir, Justice (retd) Dost Muhammad Khan and Pakistan Bar Council representative Akhtar Hussain opposed the approval.
On Aug 5, SHC CJ Ahmed Ali Sheikh had wrote a letter to the JCP to dispel any impression that he had at any stage agreed to or given consent to attend the sittings of the SC as an ad hoc judge. However, he clarified that he had no objection to his nomination as a permanent SC judge.
On Tuesday, AG Khalid Javed, in his three-page viewpoint, which he submitted before the Judicial Commission, and shared with the media as well of the view that in case of SHC CJ refusal, Article 206 will not apply, which says that if a high court judge does not accept his elevation to SC as a permanent judge, then he will be deemed to retire.
He submitted that the SHC CJ wrote a letter conveying his unwillingness to join the SC as an ad hoc Judge, and agreeing to appointment as permanent judge of the SC. He said that the arrangement envisaged in Article 182 is not a case of appointment in any manner.
It is only a temporary arrangement whereby a person falling in one of the two clauses of Article 182 may be ‘requested’ or ‘required’, as the case may be, to attend sittings of the SC as an ad hoc judge for such period as may be necessary, the AG submitted.
Khalid Javed said that Article 206(2), which provides consequences of refusal by a judge of the high court to be appointed as a judge of the Supreme Court, adding that here the judge of a high court obviously must include the chief justice; otherwise, it would create an anomaly that a high court CJ may refuse appointment to the SC and avoid consequences envisaged in Article 206(2), yet other judges of the high court would face such consequence.
“A cumulative reading of these provisions indicate that for the purpose of Article 182 as well as 206(2), Chief Justice of High Court is included in the definition of the judge, provided in Article 260 with the result that there is no specific bar and the chief justice may also be considered for ad hoc appointment under Article 182(b),” Khalid Javed submitted.
The AG submitted that the question is whether consent of the chief justice is nevertheless required when he himself is required to attend sittings as ad hoc judge of the Supreme Court. The text of the provision is silent but Article 175A(5)(iv) is indicative of and acknowledges the principle that the member of the JCP, whose own case is considered is not made part of the deliberations. This may indicate that where the CJ of a high court is being considered for sittings as an ad hoc judge, his consent may not be necessarily be a pre-requisite for that purpose.
He said presently the SC did not have a Sindhi speaking judge. Given the past injustices, committed to the people of Sindh in various national institutions including the judiciary, this is a highly sensitive issue for the people of Sindh.
Meanwhile, Pakistan Bar Council (PBC) Tuesday strongly condemned the nomination of SHC CJ as an ad hoc judge of the SC by the Judicial Commission of Pakistan. He said Justice Ahmed Ali Sheikh had stated that he was not willing to be appointed as an ad hoc judge. The PBC vice chairman said it is violation of Article 182 of the Constitution, since Chief Justice could not be appointed as an ad hoc judge of the Supreme Court and only a retired judge of the Supreme Court or a high court could be appointed as an ad hoc judge.
He expressed his concerns that on July 28, the SHC chief justice was not competent to be elevated as a judge of the Supreme Court, but after two weeks, how he became eligible and competent for appointment as an ad hoc judge of the apex court.
He said the legal fraternity feels that a terrible example is being set through this ad hoc appointment and it would further weaken the judicial system. Meanwhile, members of the bar councils in Karachi boycotted the court proceedings against the appointment of the SHC CJ as an ad hoc judge of the Supreme Court of Pakistan.
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