Our Constitution envisages ad hoc appointments at the Supreme Court. Per se, therefore, a discussion or a suggestion that there be such appointments is not the devil’s work or an attack on democracy or necessarily an artifice for political gamesmanship. Perhaps, misuse of power or ulterior motives of men entrusted power has made most of us, regrettably, doubt every act of such cadre. The reality is that there have been, in the past, some worthy and some not so worthy ad hoc appointments.
Be that as it may, consideration of the subject afresh is eminently warranted.
To begin with, an ad hoc appointment is a genre distinct from regular appointments. It is also distinguishable from appointment of ‘acting’ judges, which are of two kinds: ‘acting’ Chief Justice of Pakistan (CJP) and the other ‘acting’ judges at the Supreme Court (SC). Separate articles of the Constitution deal with them (namely: Articles 180 and 181). Both such appointments are, however, predicate on a “vacancy” having occurred or on account of the absence or otherwise inability of the judge to perform his duties. Retired judges of a High Court are also eligible for appointment as ‘acting’ judges. Ad hoc appointments, however, have altogether different preconditions.
Article 182 provides that if “for any other reason” increase in the number of Judges of the SC becomes necessary on a temporary basis, ad hoc judges may be appointed to the SC. It casts a very wide net – any reason. It is limited only by the condition that such measure be temporary.
Article 182 of the Constitution is devoted to such appointments. It covers two distinct aspects. First, a specific circumstance where for ‘want of quorum’ it has become “impossible” for Judges of the SC to “hold or continue any sitting of the Court.” This specific circumstance foreseen by the framers of the Constitution is in itself a conundrum but, since it is not at play today, we need not delve in to its multitudes. It is the second aspect under Article 182, a rather catch all provision, that merits consideration, not only because of the media frenzy that is abound.
Article 182 provides that if “for any other reason” increase in the number of Judges of the SC becomes necessary on a temporary basis, ad hoc judges may be appointed to the SC. It casts a very wide net – any reason. It is limited only by the condition that such measure be temporary. Ostensibly, the reason given for ad hoc appointments by Chief Justice Qazi Faez Isa, that is, escalating pendency of cases, is a valid one. It takes long (in some cases years) before cases are put up for hearing let alone the time it takes to proceed and then, to render judgment. Just imagine the plight of those litigants whose cases remain pending at the apex Court for years and are eventually remanded to a lower court or whose cases are decided after death! For such lot, obtaining justice has become a greater mockery than access to justice. Such attitudes encourage one to take the law in one’s own hands. A recipe for a complete breakdown of society, caused primarily due to an inefficient and callous justice system.
As for the constitutional limitation that ad hoc appointments be on temporary basis, the proposal specifies a three-year term. This is a much longer period than past precedent. Historically, such appointments have not been that long. The case for a three-year term, therefore, needs to be better presented. Given the surge in pending cases due to higher institution, perhaps, the proposed ad hoc appointments should be for one year only. Subject to positive impact on caseload management, an ad hoc appointee may be granted one extension for a similar term – no more! And, most importantly, recourse to ad hoc appointments cannot be a routine feature. Hence, the proposal to appoint four – not one blue eyed (as has been seen in the past) judge, is not only understandable but appreciated.
In the peculiar circumstances that the Court confronts today, Article 182 ought not to remain redundant. Instead, it should be employed with transparency. But, what if resort to ad hoc appointment does not solve the problem? In all likelihood, it will not. Assume, for a moment, that high courts become more efficient. The necessary consequence would be higher number of petitions to the apex Court. Hence, alternative method of caseload management needs to be considered as well. For now, however, let’s keep to ad hoc appointments.
For effectively employing Article 182, it is the CJP who may initiate: (i) “consultation” with the Judicial Commission of Pakistan (whose constitutional duty it is to recommend judges for appointment) and (ii) “approval” of the President before the CJP “requests” any former judge of the SC (within three years of his end of service at the Court) to attend sittings of the Court as an ad hoc judge. A judge of any of the High Courts may also be considered for ad hoc appointment provided such judge is otherwise qualified for appointment at the Supreme Court and his Chief Justice consents to such appointment. However, this possibility is not at issue as well today because all four recommended by CJP Isa are former SC judges.
When the High Courts are themselves plagued with surmounting pendency, would it be wise to bring one or more of theirs to the apex Court? Noticeably, the two larger High Courts – the Lahore High Court and the High Court at Sindh, that could potentially feed ad hoc appointments have a large number of vacancies.
Thus, strictly speaking, identification of individuals and seeking their availability for ad hoc appointments by the CJP himself before consulting the Judicial Commission of Pakistan (JCP) and getting approval of the President for such appointments is kind of jumping the gun.
Considering that members of the Bar have resisted ad hoc appointments and that motivations of this measure would, in the current environment, have been misconstrued, perhaps, CJP Isa could have better managed the process. For instance, he could have tabled the issue before the JCP first and after a meaningful and affirmative consultation approached the President for his in-principle approval of appointing ad hoc judges for the purpose intended. This is not asking much from a person who is not a stickler for centralised authority with the CJP.
Thereafter, to discredit allegations of favouritism or ulterior motives, Chief Justice Qazi Faez Isa could have reached out to all eligible candidates, and only those who would have confirmed interest (even those who are perceived as die-hard opponents), should have been considered for appointment “in consultation” with the Judicial Commission. The unfortunate incident of former CJP Jilani, who is reported to have first informally consented to have accepted Commission in the IHC Judges Letter case but later withdrawn, allegedly due to media pressure, should have served as a guide. In this regard, a judge who is already serving a post retirement appointment at a tribunal should not be considered, because it will disrupt the work at the tribunal. It does not make sense to attempt fixing one office at the cost of abandoning another.
The refusal of two of the four under consideration former judges to accept ad hoc appointments (as reported as at the time of publication) has raised the bigger concern, alluded to above. What if no one is interested, how will the case load be managed? Presently, as worded, Article 182 only envisages appointment of former SC judges or sitting High Court judges. Hence, where no or lesser than the desired number of former SC judge(s) are available, the only option left is to consider eligible High Court judges. But, when the High Courts are themselves plagued with surmounting pendency, would it be wise to bring one or more of theirs to the apex Court? Noticeably, the two larger High Courts – the Lahore High Court and the High Court at Sindh, that could potentially feed ad hoc appointments have a large number of vacancies.
Thus, remaining within the constitutional framework, the only way forward would be to first populate the High Courts to full strength and then pick from amongst the senior cadre a group of judges who can act as ad hoc judges to help reduce the caseload. But, as noted above, this is not going to be a permanent resolution of the problem. The circumstance requires intervention by the Parliament.
The controversy about incumbent government’s legitimacy or capability of the Parliament today to make constitutional amendments aside, there are only two ways out of this mess, and both are through a constitutional amendment. The Parliament may either increase the number of judges or make provision for appointment of ad hoc judges directly from the Bar or both.
Ad hoc appointments must not be projected as another opportunity for post-retirement gainful employment but a response to a higher calling – in this case, a public service with the sole purpose of easing caseload to reduce suffering of the litigating public!
In respect of the latter, based on the nature of cases pending, lawyers specialising in the relevant discipline could be considered, preferably, for a one-year term, extendable to another similar term, but subject to satisfactory performance. Importantly, such cadre of ad hoc judges should only be assigned cases pending before their appointment and not be part of Benches considering cases impacting current political issues or involving questions of public importance. This would allay any concerns of misusing this enabling provision to ensure effective and efficient administration of justice. This point may not be addressed in the constitutional amendment. A truly independent CJP can be trusted to ensure it.
Also, the Chief Justice (or the committee of judges) should not make them part of a Bench headed by him to eliminate suggestions (howsoever unwarranted) that an ad hoc judge will likely tow the chief’s line as a pay back. This provision may attract distinguished lawyers to become temporary judges because they would be able to return to practice, unaffected by the restriction on practice before the Supreme Court or any High Court. Another valid reason for considering lawyers for ad hoc appointments to the Supreme Court is that recently retired judges, respectfully, may well have been contributories to the escalating caseload. It is unfair to expect them to perform more efficiently post retirement.
And, most relevantly, ad hoc appointments must not be projected as another opportunity for post-retirement gainful employment but a response to a higher calling – in this case, a public service with the sole purpose of easing caseload to reduce suffering of the litigating public!
But as they say: who shall live to see the day?