ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Tuesday decided by a majority of 5 to four that Sindh supreme court (SHC) judge Ahmed Ali Shaikh would be invited to become a billboard hoc judge of the Supreme Court for a period of 1 year provided he accorded his consent.
Earlier, the SHC judge had through a letter to the JCP on Aug 5 dispelled an impact that he had ever accorded his consent for attending sittings of the Supreme Court as a billboard hoc judge.
An informed source told Dawn that those that opposed the thought during a gathering of the JCP, presided over by a judge of Pakistan (CJP) Gulzar Ahmed, included Justice Qazi Faez Isa, Justice Maqbool Baqar, former SC judge Dost Mohammad Khan and recently appointed representative of the Pakistan Bar Council (PBC) Advocate Akhtar Hussain. Justice Isa, who recently contracted Covid-19, was on oxygen during the meeting.
On the opposite hand, CJP Gulzar, Justice Mushir Alam, Justice Umar Ata Bandial, and Law Minister Dr. Farogh Naseem voted in favor of appointing the SHC judge as a billboard hoc judge of the Supreme Court. Attorney General for Pakistan (AGP) Khalid Jawed Khan also supported the advice but said that conditional approval should tend subject to the consent of the SHC judge.
In a written argument before the SJC, the AGP also requested Justice Ahmed Ali Shaikh earnestly to reconsider his position within the interest of the people of Sindh and therefore the institution of the SHC, which “we all love and cherish”.
According to the source, a frank and candid discussion happened during the meeting that lasted two hours and 45 minutes.
Earlier also, the JCP had by a majority of 5 to four approved the elevation of Justice Muhammad Ali Mazhar, fifth within the seniority list of the SHC, to the Supreme Court. the choice had invited robust disapproval from the PBC, a premier lawyers’ body.
Commenting on things, a senior counsel said on condition of anonymity that the proposal would stand defeated the instant Justice Shaikh chose to not accord his consent. He said the SHC judge had already been requested to think about his earlier stance of not giving his consent and if he still sticks to his earlier decision, it might then be the top of the story.
“But just in case he agrees to become a billboard hoc judge of the Supreme Court, he will still be retaining the office of the judge and a senior puisine judge is going to be appointed as an acting judge of the SHC,” the council explained.
Sindh supreme court Bar Association (SCHBA) president Salahuddin Ahmed said he was proud of the choice since the stand taken by the AGP apparently suggested that the motion had failed as four minority members disapproved the suggestion whereas the one voted that the SHC chief justice’s consent was necessary for appointment.
In his written argument, the AGP said he believed that though it had been not a perfect proposal and things could have clothed far better and unfolded more amicably, given the unenviable situation during which “we were placed and to realize a more positive outcome out of a challenging situation”, this proposal might help in going an extended way in addressing the intense problem faced by litigants whose cases were pending within the supreme court also as concerns of the people of Sindh.
“The legitimate expectations of other judges within the SHC can also be partially met through this arrangement. Presently, the comity that needs to exist among senior judges of the supreme court wasn’t at its customary level and should have seriously affected the functioning and atmosphere of the SHC,” AGP feared.
Resultantly, the people of Sindh and therefore the litigants whose cases are pending within the supreme court are suffering serious and irreparable harm, he said, adding that “we must acknowledge that the institutions and offices created by the Constitution were established for the welfare of the people and not a glorification of the holders of offices”.
The AGP said the JCP members had agreed to the proposal of appointing SHC judge as a billboard hoc judge since they were extremely sensitive and equally keen to make sure that the people of Sindh shouldn’t have the sensation of being overlooked.
Referring to the question of whether the SHC judge falls within the ambit of Article 182 of the Constitution and whether his consent was a prerequisite, AGP Khan explained that the supply indicated that it had been a mere request which could not be of a binding nature.
About the question of whether the word utilized in Article 182(b) includes the judge, he cited Article 260 of the Constitution which provides a definition of the judge, which incorporates the CJ. during this context, Article 200(1) relates to the transfer of the supreme court judge, but there’s evidence about specifically excluding the CJ from the meaning of the judge — evidence not added to Article 182 of the Constitution.
The AGP said the Constitution didn’t provide the specific consequence of a refusal by the supreme court judge to become a billboard hoc judge of the apex court, otherwise, this is able to be absurd and will never be the intent of the framers of the Constitution.
“A cumulative reading of those provisions indicate that for the aim of Article 182 also as 206(2), CJ of the supreme court is included within the definition of the judge provided in Article 260 with the result that there’s no specific bar and therefore the judge can also be considered for unplanned appointment under Article 182(b),” the AGP said.
