ISLAMABAD: Undeterred by the furore over the issue of ad hoc judge, the Judicial Commission of Pakistan (JCP) is all set to meet on Tuesday (today) for consultations on the temporary appointment of Sindh High Court (SHC) Chief Justice Ahmed Ali Shaikh to the Supreme Court.
The JCP, headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed, is meeting despite the SHC chief justice’s letter to the commission dispelling an impression that he had ever accorded his consent to attending sittings of the Supreme Court as an ad hoc judge.
The JCP meeting is also on schedule despite a joint call by the Sindh Bar Council (SBC), Sindh High Court Bar Association (SHCBA) and Karachi Bar Association (KBA) to boycott court proceedings throughout the province on Aug 10 over the issue.
An informed source told Dawn that though the SBC, SHCBA and KBA contended that Article 182 of the Constitution permitted only a retired judge of the Supreme Court or the high court to be appointed as ad hoc judge of the Supreme Court, and not the chief justice of the high court, Article 200 allowed the transfer of a high court judge to another high court.
The source explained that under Article 200, a judge was transferred to another high court with the consent of the CJP and the chief justice of the relevant high court with his consent, which meant this provision excluded the chief justice and thus the latter could be appointed to the apex court as an ad hoc judge.
Meeting being held despite SHC CJ’s letter denying he ever agreed to work as ad hoc judge; Sindh lawyers to boycott court proceedings
When asked whether the JCP would take a final decision on Tuesday or simply consult and then defer the matter for some other day keeping in view the SHC chief justice’s letter as well as the strong reaction from the bar associations and councils, the source said it was entirely up to the commission to determine.
The source was of the opinion that the JCP might determine whether or not the consent of the high court chief justice was necessary if he was asked to sit as an ad hoc judge of the apex court.
However, a senior counsel said on condition of anonymity that Article 200 related only to the transfer of a high court judge to another high court, and not to the apex court. He said Article 182 (b) of the Constitution clearly stated that with the approval of the president, a retired judge of the Supreme Court can be asked to attend sittings of the apex court as an ad hoc judge for a period as may be necessary.
This provision does not envisage the appointment of the chief justice of the high court concerned to the apex court as an ad hoc judge since neither the Constitution nor the framers of the green book intended to be so. When a judge of the high court is elevated as the chief justice of that high court, a separate notification is issued in addition to the one issued earlier when the nominee becomes the judge of the court, the counsel said, emphasising that if the SHC chief justice was asked to join the proceedings of the apex court as an ad hoc judge, he would retain the office of the high court chief justice.
And then in his place the senior puisine judge of the high court would be asked to officiate as the acting chief justice of the SHC, he said.
Meanwhile, the SBC, SHCBA and KBC, while issuing the strike call, warned in a joint statement that if the SHC chief justice was appointed as an ad hoc in the apex court against his will, it would set a terrible constitutional precedent and permanently destroy the independence of the high court.
The statement was signed by SBC vice chairman Zia-ul-Hassan Lanjar, SHCBA president Salahuddin Ahmed and KBA president Naeemuddin Qureshi.
“A needless constitutional crisis is being created merely because of the JCP’s insistence not to follow the seniority principle,” the joint statement deplored, requesting that SHC chief justice be appointed a permanent judge of the Supreme Court against the available vacancy.
CJP Gulzar administered the oath of office to Justice Jamal Khan Mandokhail, the former chief justice of the Balochistan High Court, as judge of the Supreme Court at a ceremony here on Monday.
Judges of the Supreme Court, Attorney General for Pakistan Khalid Jawed Khan, senior lawyers, law officers and officers of the Law and Justice Commission of Pakistan attended the ceremony. SC Registrar Jawad Paul conducted the proceedings of the oath-taking ceremony.
Meanwhile, a chart provided by the SHCBA displaying disposal of cases by the chief justice and four senior judges of the SHC from 2009 until 2021 showed that SHC chief justice had a total of 125 judgements to his credit which have been published in different law journals.
However, a grand total of 11,436 cases are in the credit of the chief justice, which include cases of different categories — constitutional petitions, criminal appeals, bail matters, criminal jail appeals, quashment cases, family matters, civil reviews, etc.
The same chart was also sent to the JCP for its consideration during the July 28 meeting in which Justice Muhammad Ali Mazhar of the SHC was nominated to be elevated as a judge of the Supreme Court.
The chart suggests that Justice Irfan Saadat Khan has 274 cases to his credit which were published in different law journals during the same period, though he decided a total of 11,646.
Justice Aqeel Ahmed Abbasi has 515 cases published in different law journals, though he decided 16199 cases. Justice Syed Hassan Azhar Rizvi has 190 cases published in law journals and he decided 11,385 cases. Justice Muhammad Ali Mazhar has 688 verdicts published in different law journals and he decided 10,432 cases.
Published in Dawn, August 10th, 2021