The Judicial Commission of Pakistan (JCP) on Friday approved the appointment of two former judges of the top court as ad hoc judges for a year.
Justice (retired) Sardar Tariq Masood and Justice (retired) Mazhar Alam Miankhel were among the two retired judges who were approved.
The JCP convened on Friday, and Chief Justice of Pakistan Qazi Faez Isa was in the chair. The meeting considered ad hoc appointments of retired judges to help reduce the massive backlog of cases.
It is pertinent to note that last week, it emerged that four recently retired judges of the top court would be considered for ad hoc appointments in the top court to help tackle the backlog. The four names that emerged were Justices (retired) Masood, Miankhel, Mushir Alam, and Maqbool Baqar.
Earlier, sources claimed that Justice (retired) Miankhel had declined the offer to become an ad hoc judge after citing personal reasons. This made Justice (retired) Miankhel the third judge to decline the offer after Justice (retired) Mushir Alam and Justice (retired) Maqbool Baqar had refused to become ad hoc judges.
JCP meeting
During JCP's meeting on Friday, sources said Justice Mansoor Ali Shah, Justice Muneeb Akhtar and Justice Yahya Afridi opposed the appointment of Justice (retired) Miankhel as an ad hoc judge. They argued that Justice (retired) Miankhel had already declined the offer.
Other members of the commission, however, were of the opinion that Justice (retired) Miankhel should be consulted again and convinced to reconsider his decision not to become an ad hoc judge.
Ultimately, his appointment was approved by a majority of six to three.
Sources said the matter will now fall to Justice (retired) Miankhel, who will decide whether to accept the position of an ad hoc judge or maintain his stance.
Moreover, the JCP has recommended, with the majority of eight to one, the name of Justice (retired) Masood for appointment as an ad hoc judge. Justice Munib Akhtar, a member of the JCP, opposed Justice (retired) Masood's name, sources said.
Appointment of ad hoc judges
From 1955 to 2016, some 22 retired judges have served as ad hoc judges in the top court.
Last week, the names of the four retired judges of the top court surfaced as having been proposed for the ad hoc positions. These included Justice (retired) Mazhar Alam Miankhel, Justice (retired) Sardar Tariq Masood, Justice (retired) Mushir Alam, and Justice (retired) Maqbool Baqar.
Of these, Justice (retired) Miankhel and Justice (retired) Masood had initially expressed their willingness to take up the positions.
Justice (retired) Alam wrote to the chief justice, informing him of his decision not to take the position based on personal reasons.
Justice Baqar, who most recently served as a caretaker chief minister of Sindh, had reportedly excused himself.
Need for ad hoc judges and opposition
The federal government and the top court believe there is a need to appoint additional judges temporarily to help clear the massive backlog of pending cases.
However, the opposition Pakistan Tehreek-e-Insaf (PTI) had requested the JCP to turn down the proposal to hire ad hoc judges.
The appointment of ad hoc judges drew the attention of political parties such as the PTI and other stakeholders owing to the top court's majority verdict in favour of the PTI. A 13-judge full court bench had heard the Sunni Ittehad Council's (SIC) appeal on reserved seats culminating in a majority verdict of eight to five, giving the PTI access to the national assembly once more.
The PTI argued that the appointment of the ad hoc judges would compromise the judiciary's independence and termed the move "dishonest." It claimed that it could serve as a ploy to force the reversal of the majority verdict issued by eight judges in the reserved seats case.
Article 182 of the Constitution says, "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 temporarily increase the number of judges of the Supreme Court, the Chief Justice of Pakistan 2 [in Consultation with the Judicial Commission 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 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 and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court."
In initial reactions to the chief justice's decision to appoint four ad hoc judges to the top court, seven members of the Pakistan Bar Council (PBC) expressed concern, stating that the move could be seen as an attempt to 'pack the court' and undermine the judiciary's independence.
However, a day before the JCP was due to meet, the PBC issued a formal statement lauding Chief Justice Isa's decision to appoint ad hoc judges to accommodate the pendency of the cases. It claimed that the council's members from Punjab and Khyber Pakhtunkhwa had suggested to CJP Isa that a constitutional provision exists for the ad hoc appointment of judges on an interim basis to help lower the growing caseload, which was suffering under the weight of high-profile political cases.
The PBC further urged the federal government to amend the Constitution to form a constitutional court dedicated to deciding constitutional and political cases.
Altered strength and review petition
After the appointment of ad hoc judges, the top court's strength is likely to surge to 19.
Legal experts, however, believe that although a 13-judge bench heard the reserved seats case, it was considered a full court because only 13 judges were available. Justice Musarrat Hilali did not participate in the case because she is currently unwell and unable to attend hearings. They claim that if a review petition of any aggrieved party is fixed for hearing, it must be heard by a full court comprising all the available judges.
So far, a three-judge committee, formed under the Supreme Court Practice and Procedure Act, decided with a majority of two to one that a review petition filed by the Pakistan Muslim League-Nawaz (PML-N) in the case could not be fixed for hearing until the detailed judgement in the original case is issued.
Chief Justice Isa heads the three-judge committee and comprises Justice Mansoor Ali Shah and Justice Munib Akhtar.
Justice Munib headed the cohort of eight judges in the full court bench that pronounced the ruling in favour of a group which was not orignally a party in the case.
Justice Shah or Justice Akhtar are expected to author the detailed reasoning behind the judgment.
Legal experts have questioned the rejection of PML-N's review petition on the pretext that the detailed judgement is absent by those judges who have yet to author the detailed reasons. They believed there was an element of bias in the decision of the three-judge committee, which had refused to fix PML-N's review petition for a hearing. They believe the judgment is already per incuriam because of multiple technical and legal grounds.
However, they lamented that while the chief justice had delegated his unbridled powers of bench formation, the law was now being exploited in favour of a political party.