KARACHI: Sindh High Court Chief Justice Ahmed Ali M. Shaikh has declined to attend the oath-taking ceremony, scheduled to take place in Islamabad on Tuesday (today), after being appointed as an ad hoc judge of the Supreme Court, Dawn learnt on Monday.

On the advice of Prime Minister Imran Khan, President Arif Alvi earlier in the day appointed SHC Chief Justice Shaikh as ad hoc judge of the apex court for a period of one year with effect from the day of his joining.

The Judicial Commission of Pakistan had decided last week by a majority of five to four that Justice Shaikh would be invited to become an ad hoc judge of the apex court for a period of one year provided he accorded his consent.

The SHC chief justice had earlier in a letter to the JCP dispelled the impression that he had ever accorded his consent for attending sittings of the Supreme Court as an ad hoc judge.

Says his appointment has been notified without lawful authority and is of no legal effect

Informed sources told Dawn that Justice Sheikh once again excused from sitting on the bench of the apex court while writing separate letters to Chief Justice of Pakistan Gulzar Ahmed and President Arif Alvi hours after the latter had issued the notification of his appointment under Article 182 of the Constitution.

The SHC chief justice stated in his letter, a copy of which is available with Dawn, that the high court registrar had brought to his notice “a notification (No. F. 2(1)/2021-A of 16 August 2021) of His Excellency, the President of the Islamic Republic of Pakistan, whereby I am to attend the sitting of the Hon’ble Supreme Court for a period of one year as an ad hoc Judge of the Hon’ble Supreme Court”.

He said the notification was issued in spite of the fact that he ‘consistently and repeatedly declined to give his consent to attend the sittings of the Supreme Court as an ad hoc judge.

“I, therefore, state that the notification has been issued without lawful authority and is of no legal effect,” stated the SHC chief justice.

Justice Sheikh said it was a sine quo non for issuing such a notification that the consent of the chief justice of the high court concerned be obtained. He reiterated that he had categorically declined to give his consent to be an ad hoc judge of the apex court. “This was done verbally as well as through three letters dated August 5, 6 and 10, 2021,” he added.

Through the letters, the SHC chief justice, however, expressed his willingness to accord consent provided he was elevated as a permanent judge of the apex court.

“In view of the above, please note that I will not be attending the oath-taking ceremony, which is scheduled to take place tomorrow i.e. August 17, 2021,” the top judge of the Sindh province stated.

Criticising the move, honorary secretary of the SHC Bar Association Mohammad Omer Soomro announced that the SHCBA members would observe a full-day strike on Tuesday (today) against the ‘unconstitutional’ notification issued by the president regarding Justice Sheikh’s appointment against his consent.

However, a senior counsel on condition of anonymity said: “It’s a clear cut stalemate and very unfortunate.” The counsel was of the opinion that whether the decline could be construed as “misconduct” was still open for interpretation.

Former president of the Supreme Court Bar Association (SCBA) Rasheed A. Razvi told Dawn that the Sindh Bar Council (SBC) as well as the Sindh High Court Bar Association would soon challenge the development by filing a set of petitions in the Supreme Court. The SCBA and SBC would also issue resolutions condemning the development.

Meanwhile, CJP Gulzar administered the oath of office to Justice Mohammad Ali Mazhar, who was elevated to the Supreme Court from the Sindh High Court. The simple ceremony was attended, among others, by judges of the Supreme Court, Attorney General for Pakistan Khalid Jawed Khan and senior lawyers.

However, the Supreme Court cancelled a full-court reference in view of the coronavirus pandemic to bid farewell to outgoing senior puisine judge Justice Mushir Alam who is reaching superannuation on Aug 17.

When asked about the consequence of the SHC chief justice’s refusal to take oath as an ad hoc judge, the senior counsel explained that whether Article 206 of the Constitution would attract on the refusal or Article 209 would be invoked or nothing would happen at all was a question yet to be interpreted.

Article 206 (2) deals with the resignation and explains that the judge of the high court who does not accept the appointment as a judge of the Supreme Court will deem to have retired from his office and on such retirement, he will be entitled to receive a pension calculated on the basis of the length of his service as judge and total service in the service of Pakistan.

Article 209 deals with the Supreme Judicial Council and is invoked against the judge for his removal after determining that the judge is not capable of properly performing the duties of the office of the judge by reason of physical or mental incapacity or guilty of committing misconduct.

Nasir Iqbal in Islamabad also contributed to this report

Published in Dawn, August 17th, 2021