THE Supreme Court is the final court of appeal, seen as the ultimate bulwark against injustice in a country that often sees too little justice, where society is riven by ethnic, religious, socioeconomic and gender-based fault lines. When the apex court itself appears in danger of falling victim to divisions within, it creates a sense of deep unease among the people. Such divisions have unfortunately been obvious for some time now, often exacerbated by pressures from without. The furore over the possible appointment of Sindh High Court Chief Justice Ahmed Ali Shaikh as ad hoc judge of the Supreme Court is but the latest episode in an ongoing controversy. It was precipitated by the Judicial Commission of Pakistan’s recommendation last month, by a razor-thin majority, of Justice Mohammed Ali Mazhar’s elevation to the apex court. The problem was that the judge is fifth in terms of seniority on the SHC bench. Lawyers’ bodies across the country vehemently opposed this move and boycotted the courts for a day. They argued that the JCP was violating the criteria of seniority as the guiding principle for elevation to the superior judiciary, according to which Justice Shaikh’s name should have been recommended.
The controversy took a further turn when the JCP decided to consider appointing the SHC chief justice as an ad hoc judge to the Supreme Court, despite Justice Shaikh’s having expressed in a letter to the Commission his disinclination to take up that role. Lawyers’ bodies, already incensed, once again boycotted the courts throughout Sindh. On Tuesday, the JCP voted by a majority of five to four to invite the province’s top judge to accept the appointment for a one-year period, provided he gave his consent. Interestingly, those in favour of extending the invitation were the same JCP members who had voted to elevate a junior judge from the SHC to the apex court, although the attorney general, while supporting the recommendation, said it should be contingent upon Justice Shaikh’s acquiescence. However, given what has transpired of late, one cannot discount the possibility that if Justice Shaikh refuses to reconsider — and who can blame him, for most judges would regard such an appointment as adding insult to injury — the JCP will greenlight his appointment anyway against his will.
The JCP’s refusal to follow precedent, principles and norms is creating an unnecessary constitutional crisis. That this is shaping up on the heels of the damage sustained by the apex court to its prestige in the course of the government’s ill-intentioned reference against Justice Qazi Faez Isa is all the more regrettable. This is the time for the superior judiciary to work towards transparent and objective criteria for elevation to its ranks. It must negate even the slightest impression that anything but integrity underlies its judgements and actions.
Published in Dawn, August 12th, 2021