Sindh High Court (SHC) Chief Justice Ahmed Ali Sheikh has refused to take oath as an ad hoc judge of the Supreme Court, following his elevation to the apex court by the Judicial Commission of Pakistan (JCP) earlier this week.
In a letter to the Chief Justice of Pakistan Gulzar Ahmed, Chief Justice Sheikh states that the official notification about his elevation has been issued despite 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 no legal effect,” says the letter. “Your Lordship may recall that I had categorically declined to give consent to an ad-hoc judge of the Supreme Court. This was done verbally as well as through three letters dated 5, 6 & 10 August,” it further says.
“In view of the above”, the SHC chief justice said that he would not be attending the oath-taking ceremony, which is scheduled to take place at the Supreme Court on Tuesday (today).
In this regard, Chief Justice Sheikh has also written a separate letter to President Dr Arif Alvi. With the refusal from Chief Justice Sheikh, the crisis regarding his ad hoc appointment as Supreme Court ad hoc judge was worsening day by day.
Chief Justice Sheikh’s refusal to take oath has started a debate among the lawyers about the legal consequences of his decision. Meanwhile, the Sindh High Court Bar Association (SHCBA) has already announced strike in the province on Tuesday (today).
Talking to The Express Tribune, a senior lawyer wondered why the Supreme Court was administering oath to Chief Justice Sheikh, when he has already refused to become an ad hoc judge of the Supreme Court. However, another senior law officer believed there would be no legal consequences.
Chief Justice Sheikh was nominated as an ad hoc judge of the Supreme Court for one year by the JCP with 5-4 vote during a meeting on August 10.
In that meeting, according to sources, Law Minister Farogh Naseem had stated that Article 206 of Constitution would be applied in case the SHC chief justice refused to become an ad hoc judge.
However, Attorney General for Pakistan (AGP) Khalid Javed Khan and other JCP members did not agree with the law minister’s contention. The AGP supported the nomination subject to the consent of Justice Sheikh, who has already communicated his unwillingness to assume the position, the sources said.
The Article 206 says: “Judge of a high court who does not accept appointment as a judge of the SC shall be deemed to have retired… and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as judge and total service, if any, in the service of Pakistan”.
On the other hand, according to a government functionary, the Chief Justice of Pakistan “can nominate” a person as an ad hoc judge in consultation with the JCP under Article 182 of the Constitution.
Article 182 says: “Appointment of ad hoc judges if at any time it is not possible for want of quorum of judges of the Supreme Court to hold or continue any sitting of the court, or for any other reason it is necessary to increase temporarily the number of judges of the Supreme Court, the Chief Justice of Pakistan in consultation with the JCP as provided in clause (2) of Article 175 A, may, in writing…
“a. with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office for three years have not elapsed; or
“b. with the approval of the President and with the consent of the Chief justice of a High Court, require a judge of that court qualified for appointment as a judge of the Supreme Court, to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary.”
The official said that in view of constitutional provision under Article 182 “meaningful consultation” had already taken place between the CJP and the JCP. The official made it clear that voting among the JCP members was also not required for the appointment of an ad hoc judge.
However, he agreed that there would be no legal consequences in case the SHC chief justice refused to attend the sittings of the apex court as an ad hoc judge.
Regarding the notification for appointment of senior SHC puisne judge, Justice Irfan Saadat, as the acting SHC chief justice, he said this notification would not be issued together with the notification about the SHC chief justice’s nomination to the apex court.
A senior lawyer says that the notification regarding the acting SHC chief justice will be issued only when the incumbent SHC chief justice leaves his post and accepts to become an ad hoc judge of the top court.
Sources revealed to The Express Tribune that at the JCP meeting on last Tuesday, Chief Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Law Minister Dr Farogh Naseem voted for nominating the SHC chief justice to the SC without his consent.
Justice Qazi Faez Isa, Justice Maqbool Baqar, Justice (retd) Dost Muhammad Khan and the Pakistan Bar Council (PBC) representative Akhtar Hussain, however, strongly opposed the nomination, contending that a high court chief justice could not be elevated as an “ad hoc judge”.
They argued that under Article 182 of the Constitution only a high court judge can be appointed as the ad hoc judge of the Supreme Court. The AGP, in his three-page written opinion, had said that the SHC chief justice could be appointed as an ad hoc judge subject to his consent.