ISLAMABAD: Chief Justice of the Sindh High Court (SHC) Justice Ahmed Ali M. Sheikh through his letter of Aug 5 to the Judicial Commission of Pakistan (JCP) dispelled the impression that he had at any stage either agreed or accorded consent to attending sittings of the Supreme Court as an ad hoc judge, it emerged on Sunday.

Presided over by Chief Justice of Pakistan (CJP) Gulzar Ahmed, the JCP is supposed to meet on Tuesday to consider appointing the SHC’s chief justice as ad hoc judge of the Supreme Court after nomination of Justice Muhammad Ali Mazhar of the same court, who was fifth on the seniority list of the high court, as a permanent judge of the apex court.

With the elevation of Justice Mazhar, the Supreme Court attained its sanctioned strength of 17 and therefore it was decided that SHC’s chief justice be appointed as an ad hoc judge of the apex court. However, in a brief letter to the JCP, Chief Justice Sheikh put on record that he had never agreed or given consent to attending the sittings of the apex court as its ad hoc judge.

In his letter to JCP, Justice Sheikh says he will have no objection if elevated as permanent judge

A source told Dawn that the high court’s chief justice had stated that he would, however, have no objection if he was appointed or elevated as a permanent judge of the Supreme Court.

He also asked the JCP’s secretary, who happens to be the registrar of the apex court, to circulate his letter among all the members of JCP.

According to the source, after the emergence of Chief Justice Sheikh’s letter, the JCP’s meeting scheduled for Tuesday might be cancelled.

When the attention of former president of the Supreme Court Bar Association Rasheed A. Razvi was drawn to the fast-changing scenario, he said the exercise of appointing the chief justice of SHC as ad hoc judge of the apex court amounted to removing the latter from the high court without due process of law, which was a violation of Article 209 of the Constitution (Supreme Judicial Council), which held that no superior court judge should be removed without invoking this provision and holding the proceedings of the SJC.

“This will establish a very bad precedent,” he said, adding that pursuant to Article 182 (the appointment of ad hoc judge), a high court judge could be invited to attend the sittings of the Supreme Court with the “approval” of the president and with the “consent” of the chief justice of the province concerned.

He explained that firstly the provision did not envisage that a chief justice could be invited to attend the apex court’s sittings as an ad hoc judge. “Secondly, without prejudice to the argument, if at all one makes the submission that the chief justice also means a judge as provided for under the definition of a judge under Article 260, his consent will still be required because although he is a judge he is also the chief justice,” observed Mr Razvi. Consent, therefore, would be essential, he emphasised.

Earlier, a joint meeting of the vice-chairmen, chairmen, executive committees, members of the JCP, provincial and Islamabad bar Councils and presidents of the bar associations through a resolution had emphasised that the seniority principle should be adhered to in all appointments to the Supreme Court, to avoid arbitrariness and nepotism and the creation of bad blood and groupings within the judiciary.

The meeting had also opposed the appointment of ad hoc judges to the Supreme Court and called upon the JCP to urgently frame transparent and objective criteria for the appointment of judges to all courts.

Published in Dawn, August 9th, 2021