ISLAMABAD: The Judicial Commission of Pakistan (JCP) by a majority five to four recommended the nomination of Sindh High Court (SHC) Chief Justice Ahmed Ali Sheikh as an ad hoc judge of the Supreme Court, his appointment will be made subject to his consent.
The JCP meeting, on Tuesday, was held in the chair of Chief Justice of Pakistan (CJP) Gulzar Ahmed to consider the nomination of Justice Ahmed Ali as ad hoc judge of the apex court.
CJP Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial, Law Minister Dr Farogh Naseem, and Attorney General for Pakistan Khalid Javed Khan endorsed the nomination, while Justice Qazi Faez Isa, Justice Maqbool Baqar, retired judge Dost Muhammad Khan, and Pakistan Bar Council member in JCP Akhtar Hussain opposed it.
The SHC chief justice, on August 5, had written a letter to the JCP conveying his unwillingness to his join as ad hoc judge, while agreeing to appointment as permanent judge of the Supreme Court.
The attorney general in his opinion submitted before the JCP, stated that appointment under Article 182 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 Supreme Court as an ad hoc judge for such period as may be necessary.
He wrote that a careful examination of Article 182 indicates that while sub-article (a) of Article 182 uses the word "request" in respect of a former judge of the Supreme Court, sub article (b) uses the word "require" in case of a judge of the High Court.
This is a clear indication that in the first case it is a mere request, which may not be a binding nature, while in the latter category it is more of a direction.
He stated that Article 260 of Constitution provides definition of a judge, which includes chief justice of the High Court, adding Article 200(1) of Constitution may also be considered. This relates to transfer of a High Court judge to another High Court. In this article, an explanation has been added in order to specifically exclude the chief justice from the meaning of judge.
There is no such explanation added in Article 182.
The AGP stated Article 206(2), which provides consequences of refusal by a judge of High Court to be appointed as a judge of the Supreme Court.
Here the judge of a High Court obviously must include chief justice, otherwise, it would create an anomaly that chief justice of the High Court may refuse appointment to Supreme Court and avoid consequences envisaged in Article 206(2) yet other judges of the High Court would face such consequence.
This would be absurd and could never be the intent of the framers of the Constitution.
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).
He stated that there may not be a textual bar in the Constitution against the inclusion of chief justice within the ambit of Article 182(b) of Constitution.
"In the absence of clear language of the Constitution leaving no doubt or ambiguity, compelling a sitting Chief Justice of a High Court against his wishes to attend sittings of Supreme Court as ad hoc judge would create a highly undesirable precedent which may have highly unpalatable consequences for the future of the judiciary as well as the country," he added.
He further wrote that the Constitution does not provide specific consequence of such refusal as to attend sittings of Supreme Court as ad hoc judge by the Chief Justice, while Article 206(2) provides such consequence.
The AGP, Khalid Jawed, stated when it became clear that the majority of the members of the JCP were unwilling to consider the appointment of chief justice of Sindh High Court as permanent judge of the Supreme Court, he then proposed that Justice Ahmed Ali be considered for joining Supreme Court as ad hoc judge of the Supreme Court for two reasons.
First, the Supreme Court does not have a Sindhi speaking judge.
Second, it is also an acknowledged fact that presently the comity that ought to exist among senior judges of High Court of Sindh is not at its customary level and may have seriously affected the functioning and atmosphere of the High Court of Sindh.
It is in this background and keeping in the welfare of the people as prime and dominant consideration worthy of respect that all stakeholder including members of JCP, the chief justice of SHC and the legal fraternity including Bar Councils and Bar Associations must consider and address the issue.
He supported the recommendation of the chief justice of Pakistan subject to the consent of Chief Justice SHC Ahmed Ali Shaikh and requested him to reconsider his position in the interest of the people of Sindh and the institution of High Court of Sindh, which we all love and cherish.
Copyright Business Recorder, 2021
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