The establishment of judiciary has lent itself into controversy as soon as once more. Just when the controversy arising from the latest elevation of an Hon’ble Sindh High Court (SHC) decide to Supreme Court Pakistan (SCP), was about to die down, the Judicial Commission of Pakistan (JCP) has taken a step that might probably result in a constitutional disaster. In its assembly on 10th of August, the nine-member JCP, by 4-4, determined for and in opposition to the appointment of Chief Justice (CJ) Sindh High Court (SHC) as an advert hoc Supreme Court decide as envisaged beneath Article 182 of the Constitution amidst in opposition to the backdrop of SHC CJ’s refusal to such move.
However, the ninth respectful member of JCP and the one who admittedly coined the concept, the Attorney General of Pakistan (AGP) supported the “temporary arrangement” of bringing the CJ SHC to SCP provided that His Lordship reconsiders his choice.
What follows subsequent would have far reaching impact starting from a authorized to a political, to an administrative and a judicial viewpoint. Firstly, as per the Article 182, for a Judge of the excessive court docket to be appointed as an advert hoc SCP decide, the consent of the chief justice of that prime court docket is obligatory. More importantly, the five-member bench of the Honorable SCP held in Al Jehad Trust V Federation of Pakistan (1996 PLD 324 SC), that such an appointment couldn’t happen if the everlasting emptiness or vacancies is/are stay to be crammed.
As per the Honorable SCP in Al- Jehad, the Constitution doesn’t acknowledge an advert hoc decide of the Supreme Court to be the decide of the SCP. Moreover, the Constitution is silent with regard to the appointment of the chief justice of any excessive court docket as an advert hoc decide of the Supreme Court of Pakistan. By advantage of his workplace, a CJ of the excessive court docket is completely different from different excessive court docket judges due to this fact, does the Constitution present for particular remedy in His Lordship’s case?
This explicit silence within the Constitution gave rise to a few numerous interpretations. The distinguished AGP is of the assumption that the excessive court docket chief justice’s consent is critical as His Lordship is finest positioned to find out if the excessive court docket wouldn’t be burdened in case of an appointment of the opposite decide of the excessive court docket as an advert hoc decide.
The AGP went on additional to contend that since it is a momentary association and never an appointment, the Hon’ble CJ SHC would nonetheless stay a excessive court docket decide and due to this fact a chief justice. Furthermore, within the backdrop of ambiguity within the Constitution, in all conditions, the requirement of the excessive court docket chief justice’s consent exists.
Apparently, the 4 JCP members opposed such a move on the grounds that the scheme of Article 182 doesn’t present for such an appointment in case of the Hon’ble chief justice of the excessive court docket. Perhaps, giving pressure to the argument that the chief justice of provincial excessive court docket mustn’t deserve a remedy lesser than being elevated to SCP in opposition to a everlasting emptiness.
The different interpretation of the Article 182 which seems to have influenced the opposite worthy 4 members of the JCP is that even in case of absence of the SHC CJ’s consent for his personal appointment, the matter would nonetheless move ahead. However, arguably, such step might not bode effectively among the many sitting or future CJs of excessive courts as it could tantamount to a “forceful” appointment as an advert hoc decide of the SCP and consequently, creates an environment of uncertainty and insecurity of tenure.
Now that the CJ SHC has, reportedly, communicated his refusal as soon as once more for the submit the JCP’s 10th August choice, what’s subsequent? Does the Constitution envisage his forceful retirement? This was hinted by Federal Minister of Law, Dr. Farogh Nasim within the final assembly of the JCP. The Article 206 offers for the retirement in case of a refusal by the Honorable excessive court docket decide for his/her appointment as a “judge of the SCP”. Since, because the AGP has admitted, this isn’t an appointment as everlasting or appearing decide of SCP by way of the related provisions of the Constitution respectively, due to this fact it couldn’t be known as as ELEVATION to the SCP. By advantage of Article 260, the decide of SCP contains an individual “acting” as a decide of the SCP however doesn’t embrace an advert hoc decide of the SCP. Per se, the possibilities of penalties envisaged beneath Article 206 to ensue from refusal of SHC CJ to present consent, stay bleak.
Will the ministry, however, concern notification for bringing the SHC CJ as advert hoc decide to SCP in opposition to his needs? Would the recurring refusal tantamount to misconduct for it to be decided by the Supreme Judicial Council discussion board as per Article 209? The Executive can not afford to open one other “contesting front” with the Judiciary when the questions regarding its own competence and delivery are being raised. Whatever the case may be, it is highly probable that the matter may land before a court of law, furthering the apprehensions of lobbying and grouping within. Focusing on the current situation, this is for the first time that with regard to the issue of appointment, reports are emerging of disagreement not between the judiciary and other institutions but within itself.
The JCP, reportedly, pitched an ad hoc arrangement so that “comity” which is missing amongst senior judges of SHC is brought back on track. Let us assume that the current SHC CJ ends up in the SCP via this “arrangement”, will the SHC be led by an Acting CJ? From a naked studying of the letter written by the AGP to JCP and the language of Article 196, it seems to be the case so.
Article 196 mentions that in case both the CJ of a excessive court docket is absent or is unable to carry out the features of the workplace for another motive, the President shall appoint an appearing chief justice. Should this not are available in the way in which of different deserving judges of the excessive court docket, aspiring to change into a everlasting chief justice of the SHC? Will this not have an effect on the administration and administration of the SHC? This, because it appears, widens the hole of “comity” which it apparently resolves to narrow. As per Al Jehad Trust, the Acting CJ is not a consultee for any of the purposes of consultation required in the Constitution. Hence, such an arrangement would indirectly result in the appointment of an acting CJ for a long period which militates against the concept of independence of judiciary. Therefore, a constitutional crisis cannot be ruled out.
Alternatively, the Article 181 expressly allows a high court judge to be appointed as an acting judge for the SCP even when there is a permanent vacancy. An acting judge of the SCP is nevertheless considered as a judge of the SCP in terms of the Constitution. In presence of such provisions, the ad hoc arrangement may not sail through without attracting criticism from Bar and may be taken in bad light by a certain section of the society.
Therefore, in light of the imminent vacancy that might fall before this gets published, the exercise should be or have been for the elevation of the high court judge who is qualified for appointment as permanent judge or acting judge of SCP. As per AGP, the ad hoc “arrangement” would counter the sentiments that people of Sindh are being left out. In such a case one wonders why such an ad hoc arrangement of bringing any other SHC judge who is qualified under Article 182 would not cater to such sentiments. Now as the SHC CJ has reiterated his stance, one could only hope that the ad hoc arrangement gets shelved. The unity and independence of Judiciary is the need of the hour. Any step that may have the slightest probability of creating fissures within the Bench and disharmony between Bench and Bar should be avoided at all cost.
The writer is a lawyer based in Karachi