Daily Times

As the controversy surrounding the appointment of ad hoc judges of the Supreme Court persists a peep into the past revealed that time and again around 22 judges of different high courts have served the top court in this capacity. By bringing in ad hoc judges with varied backgrounds different perspectives can be incorporated into the decision-making process. This diversity can lead to more comprehensive and well-rounded judgments, considering diverse legal approaches. In its bi-annual report, the Law and Justice Commission of Pakistan recorded that during the second half of 2023, the overall pendency of cases in all courts of the country increased by 3.9pc, reaching a staggering 2.26 million cases. Understanding the intent behind the appointments, ad hoc judges if cherry-picked owing to merit, competency, and keeping in consideration their duration as a judge can augment their performance. However, in the absence of any meaningful legislation with harmony to the rules and clear guidelines, an overwhelming number, look at these appointments as a failure.

It is worth mentioning that the headlines surrounding the canvass of appointment stand a tortuous and nuanced case. Alternate perspectives exist, and opinions vary depending on one’s position and understanding of the legal system. The majority dissent that the process lacks transparency also expresses concerns regarding the impartiality and integrity of ad hoc judges. The perception of political interference erodes public trust in the judiciary and puts into question the fairness of judicial processes. Moreover, critics doubt the significant jurisprudence these appointed judges had laid down during their term of office.

Bringing kind attention to Article 179 of the Constitution that lays down the retiring age of a judge of the SCP, it is clear from the language of Article 179 of the Constitution that it does not create any exception in favor of an ad-hoc appointee. Any judge of the SCP shall hold office until attains the age of sixty-five years. Article 182 does not contain any non-obstante clause overriding the provision of Article 179. At this juncture, a reference to Article 195 of the Constitution which governs the retiring age of a judge of the High Court is relevant. The logical construction of the aforementioned provisions is that a judge of a High Court, who has retired at the age of sixty-two years, may, within a period of three years of her/his retirement, be appointed as an ad-hoc judge of the SCP under Article 182 (a) of the Constitution. Any such ad-hoc appointee shall retire as a judge of the SCP upon attaining the age of sixty-five years in terms of Article 179 of the Constitution. If the intention of the framers of the Constitution was to provide for the appointment of retired judges of the SCP as ad-hoc judges under Article 182 (a) of the Constitution; an exception would have been created in the retirement age under Article 179 to the extent of ad-hoc judges; and the three- year post-retirement time limitation would not have been provided in Article 182 (a). In view of the constitutionalists’ it is apprehended that the Commission should have not appointed any retired judge of the SCP as ad-hoc under Article 182 (a) of the Constitution as any such appointment is violative of the Constitution.

Had Mr. Justice Qazi Faez Essa, who ostensibly appeared to be triggered by the bloated egos come to grips with this case of swift adjudication straight after his Lordship swore in as CJP would have preserved his honor to a certain extent close to his retirement.

One wonders that in times bygone, the status of pendency of cases was not disparate, then what might be the clandestine motive of proposing the ad hocs. Despite loud condemnation from a segment of lawyers and Bar associations, the JCP has approved the nomination of two retired Supreme Court judges for one year. Vividly, it has been reported that before the JCP meeting, Justice (retired) Miankhel expressed his inability to serve citing a social media campaign against his appointment. He also apprised the media of his reluctance to take up the position. Following the nomination of Mazhar Alam Miankhel, a few remarked “If you can’t bear the heat then stay out of the kitchen” as it is extraordinary for a judge to admit difficulty in handling judicial pressure yet still be nominated to serve on the bench.

Addressing the appointment, whether these judges are entitled to both salary and pension. Will it be just to receive both salary and pension, as they could earn approximately Rs2.6 million per month from the public exchequer, potentially more than any of the superior court judge? Additionally, overlooking about 50% population of my country, not even a single lady judge was welcomed, why? Particularly by the time when the superior courts are already stuffed with the male majority. But as to question the appointment, it’s better to outline the rules before invading a fresh controversy.

The fixed number of judges in IHC is 10 but 2 posts have been vacant for the past several years, in BHC it is 15, and 4 left unoccupied, In a similar manner in LHC 62 but 26 posts are gathering dust, in PHC 6 out of 20 and in the SHC it’s 3 out of 32 vacant. Conceding that these vacancies are filled immediately, there can be at least a 30% improvement in the adjudication of cases which can also help in the cause of speedy justice. But the tragedy here is that the judges who already had clung to the superior positions are keen to hold the grip, post-retirement.

The writer is an advocate High Court and a social activist. She posts on LinkedIn @Bina Shahid, X: @faraz_bina, and can be reached at binashahid21@gmail.com