ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Tuesday decided by a majority of five to four that Sindh High Court (SHC) Chief Justice Ahmed Ali Shaikh would be invited to become an ad hoc judge of the Supreme Court for a period of one year provided he accorded his consent.

Earlier, the SHC chief justice had through a letter to the JCP on Aug 5 dispelled an impression that he had ever accorded his consent for attending sittings of the Supreme Court as an ad hoc judge.

An informed source told Dawn that those who opposed the idea during a meeting of the JCP, presided over by Chief Justice of Pakistan (CJP) Gulzar Ahmed, included Justice Qazi Faez Isa, Justice Maqbool Baqar, former SC judge Dost Mohammad Khan and recently appointed representative of the Pakistan Bar Council (PBC) Advocate Akhtar Hussain. Justice Isa, who recently contracted Covid-19, was on oxygen during the meeting.

Commission decides to seek Justice Shaikh’s consent for appointment to apex court

On the other hand, CJP Gulzar, Justice Mushir Alam, Justice Umar Ata Bandial and Law Minister Dr Farogh Naseem voted in favour of appointing the SHC chief justice as an ad hoc judge of the Supreme Court. Attorney General for Pakistan (AGP) Khalid Jawed Khan also supported the recommendation, but said that a conditional approval should be given subject to the consent of the SHC chief justice.

In a written argument before the SJC, the AGP also requested Justice Ahmed Ali Shaikh earnestly to reconsider his position in the interest of the people of Sindh and the institution of the SHC, which “we all love and cherish”.

According to the source, a frank and candid discussion took place during the meeting that lasted two hours and 45 minutes.

Earlier also, the JCP had by a majority of five to four approved the elevation of Justice Muahmmad Ali Mazhar, fifth in the seniority list of the SHC, to the Supreme Court. The decision had invited a strong disapproval from the PBC, a premier lawyers’ body.

Commenting on the situation, a senior counsel said on condition of anonymity that the proposal would stand defeated the moment Justice Shaikh chose not to accord his consent. He said the SHC chief justice had already been requested to consider his earlier stance of not giving his consent and if he still sticks to his earlier decision, it would then be the end of the story.

“But in case he agrees to become an ad hoc judge of the Supreme Court, he will still be retaining the office of the chief justice and a senior puisine judge will be appointed as acting chief justice of the SHC,” the counsel explained.

Sindh High Court Bar Association (SCHBA) president Salahuddin Ahmed said he was happy with the decision since the stand taken by the AGP apparently suggested that the motion had failed as four minority members disapproved the suggestion whereas the one voted that the SHC chief justice’s consent was necessary for appointment.

In his written argument, the AGP said he believed that though it was not an ideal proposal and things could have turned out much better and unfolded more amicably, given the unenviable situation in which “we were placed and to achieve a more positive outcome out of a challenging situation”, the present proposal might help in going a long way in addressing the serious problem faced by litigants whose cases were pending in the high court as well as concerns of the people of Sindh.

“The legitimate expectations of other judges in the SHC may also be partially met through this arrangement. Presently, the comity that ought to exist among senior judges of the high court was not at its customary level and may have seriously affected the functioning and atmosphere of the SHC,” AGP feared.

Resultantly, the people of Sindh and the litigants whose cases are pending in the high court are suffering serious and irreparable harm, he said, adding that “we must acknowledge that the institutions and offices created by the Constitution were established for the welfare of the people and not glorification of the holders of offices”.

The AGP said the JCP members had agreed to the proposal of appointing SHC chief justice as an ad hoc judge since they were extremely sensitive and equally keen to ensure that the people of Sindh should not have the feeling of being left out.

Referring to the question whether the SHC chief justice falls within the ambit of Article 182 of the Constitution and whether his consent was a prerequisite, AGP Khan explained that the provision indicated that it was a mere request which might not be of a binding nature.

About the question whether the word used in Article 182(b) includes the chief justice, he cited Article 260 of the Constitution which provides definition of the judge, which includes the CJ. In this context, Article 200(1) relates to the transfer of the high court judge, but there is an explanation about specifically excluding the CJ from the meaning of the judge — an explanation not added to Article 182 of the Constitution.

The AGP said the Constitution did not provide specific consequence of a refusal by the high court chief justice to become an ad hoc judge of the apex court, otherwise 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), CJ of the 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),” the AGP said.

Published in Dawn, August 11th, 2021