Daily Times

Since 1973, the unwanted and unconstitutional practice of appointing additional judges on ad-hoc basis in High Courts “for such a period as determined by the President, not exceeding the period prescribed by law” is continuing unabated. This procedure needs serious consideration by the Chief Justice of Supreme Court and all those concerned with dispensation of justice in the country. This is an undesirable practice as additional judges are members of the superior judiciary and their appointment on temporary basis negates the concept of independence of the judiciary.

There is no such concept in the United Kingdom from where we have inherited the present legal system or elsewhere in the civilised, democratic world. Surprisingly, in Pakistan, judges in subordinate judiciary are not appointed on ad-hoc basis and their tenure of service is neither short nor uncertain. Hence, contrary practice at the level of the High Court is not understandable.

Article 197 of the constitution empowers the president to appoint duly-qualified persons to be additional judges if it appears to him that

(a) the office of a judge of a High Court is vacant; or

1. b) a judge of a High Court is absent or is unable to perform the function of his office for any other reason; or

(c) for any reason it is necessary to increase the number of judges of a High Court.

If the preconditions set out in Article 197 are satisfied and the president proceeds to exercise the power to appoint an additional judge, he can appoint only such person who is qualified and fulfils all the requirements of Article 193 of the constitution. The eligibility qualifications for appointment as a judge of a High Court are given in Article 193(2) — the qualifications for a temporary judge to be appointed under Article 197 are the same as of a regular judge under Article 193.

Even after the insertion of Article 175A in 2010, no effort is made to increase the number of permanent judges in High Court after taking into consideration increase in workload. On the contrary, it has been a consistent policy to use Article 197 as a gateway through which almost every judge has to pass before being made permanent.

A number of judges appointed in High Courts, before being made permanent, had to get a number of extensions. It is evident that in practice the true intention and purpose of Article 197 has not been fulfilled. The consequence is that arrears in the High Courts keep on growing immensely from year to year. At the same time, the requisite numbers of additional judges have not been appointed by the governments, though Article 197 clearly contemplates that sufficient number of additional judges should be appointed in order to clear arrears within a short period of time.

It is difficult to understand why judges are being appointed as additional judges even now, when there is an undisputed need to appoint more permanent judges in order to cope with the heavy workload and to deal with the problem of arrears

It is difficult to understand why judges are being appointed as additional judges even now, when there is an undisputed need to appoint more permanent judges in order to cope with the heavy workload and to deal with the problem of arrears. There is no financial gain to the government, as the expenditure involved is the same whether a judge is an additional judge or a permanent one.

Since an additional judge faces test of fitness and suitability after appointment, it is obvious that he/she would be under constant pressure of being dropped out at the end of his/her initial term of office. Non-confirmation of an additional judge reflects negatively on his/her selectors. There should be appointment on permanent basis of competent people and subsequent removal, if justified on any reason of incapability or misconduct, should be under Article 209 of the constitution.

An additional judge is as much a judge as a permanent one with the same jurisdiction and powers. Treating him on probation not only detracts from his status and dignity but also affects his independence by making his continuance as a judge dependent on the opinion of the Chief Justice of the High Court or the Chief Justice of the Supreme Court and members of Judicial Commission [Article 175A of the Constitution].

There is no denying the fact that security of tenure ensures judicial independence, while short-term tenure or appointment on ad-hoc basis can cause insecurity directly impinging on judicial independence. Article 193 of the constitution bestows a primary obligation on the president to provide adequate permanent strength to every High Court to enable it to cope with its normal business so as to ensure expeditious disposal of cases.

The strength has to be reviewed from time to time so that arrears do not accumulate and justice to litigants is not unduly delayed. The stark reality prevailing in all the four High Courts make it clear that the increase of business is not of a temporary character but is a permanent phenomenon and that the arrears have accumulated to a disturbing level. Therefore, it is imperative not to resort to Article 197, but to increase the strength by making permanent appointments under Article 193.

The Supreme Court in AI-Jehad Trust vs Federation of Pakistan and others (PLD 1996 SC 324) expressed its strong resentment at the appointment of ad-hoc chief justices. Why is the same principles not adopted in the case of judges of High Courts when permanent vacancies exist? The need of the hour is a complete and correct assessment of the requisite strengths of permanent judges for every High Court in terms of its work-load. If the situation so demands, the president must take immediate steps to provide an adequate strength of permanent judges to every High Court to cope with its normal business. He must also review such strength from time to time so that arrears may not accumulate and justice is dispensed expeditiously.

The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email: ikram@huzaimaikram.com; Twitter: @drikramulhaq3

Published in Daily Times, November 26^th 2017.