Temporary judges are a temporary solution: legal experts

KARACHI: While the constitution allows for temporary increases in the number of judges, some legal experts argue it is a short-term solution to a deeper issue, highlighting the need for systematic judicial reforms and questioning the efficacy and timing of ad-hoc appointments.

The Supreme Court is considering appointing retired judges as ad-hoc judges, in light of over 54,000 pending cases, and the Judicial Commission of Pakistan (JCP) will be meeting on Friday in this regard.

With the PTI saying that the ad-hoc judges’ appointment is being done in response to the reserved seats judgment, and is an “uncalled-for” step, The News asked lawyers what they think of adding ad-hoc judges to the Supreme Court.

First, the process: the constitution is silent on how many judges are to make up the Supreme Court. But the Supreme Court (Number of Judges) Act, 1997 does specify a number. Explains lawyer Salaar Khan: “The 1997 law fixes it at 17 judges. The constitution does, however, allow for ways to supplement the strength of the court. One of these is through the appointment of ad-hoc judges. Such judges can be appointed if -- for basically any reason - it is ‘necessary’ to ‘temporarily’ increase the number of judges of the SC.”

Two categories of judges can serve as ad-hoc judges: former judges of the Supreme Court who retired less than three years ago, and eligible serving judges of a high court. Simply put, the procedure is that the chief justice proposes the names of possible ad-hoc judges. These names are then deliberated upon by the JCP and once the names are approved and they have accepted appointment, they are sent to the president for approval.

Barrister Ali Tahir says that this is the same manner as judges of the Supreme Court are appointed, with the caveat that if the appointee is from a high court then the consent of the chief justice of that high court is also required.

On to the main issue: do we need ad-hoc judges in the Supreme Court at this moment?

Lawyer Abdul Moiz Jaferii tells The News that the language used in Article 182 -- which deals with the appointment of ad-hoc judges -- “cannot be considered to alleviate the general issue of there being a backlog of cases in the Supreme Court. The language also makes clear that these judges will be appointed to attend specific sittings that serve their ad-hoc purpose and cannot be entrusted with a general roster or anything to do with the administration of the court. So to my mind unless a specific need can be pointed out in the Supreme Court and unless their ad-hoc service can be clearly defined; it is difficult to justify such an appointment.”

Barrister Tahir too feels that, since Article 182 says that ad-hoc judges may be appointed if at any time the SC quorum is lacking or for any other reason it is necessary to increase temporarily the number of judges of the Supreme Court, “this is not the case at hand as the Supreme Court is already sitting at its full strength after the three recent elevations.”

Tahir refers to the Al Jehad Trust case ruling in 1996 in which the SC held that ad-hoc appointments could only happen for want of quorum of judges of the SC to hold or continue any sitting which is not possible, or for a temporary reason. Therefore, he says, “it becomes quite clear that the express words of the constitution do not allow for such appointments for the reasons stated in the current case. It is of course within the domain of parliament to increase or decrease the number of judges.”

Salaar Khan adds some context to the situation. The chief justice has stated that the reason for the increase in the number of judges is the high pendency of cases. “These are, truly, staggering numbers and such a high caseload is a fair reason to seek the appointment of more judges. So, yes, this is a reasonable case for necessity. In fact, this is often the reason why ad-hoc judges are appointed. As to the ‘temporary’ part, three years is on the higher end of previous ad-hoc appointments, but it’s nothing too far out of the ordinary.”

So then why the critique? Salaar says: “Appointing more judges to reduce caseloads is much like adding a lane to a road to end traffic. It’s a band-aid over a cut that runs quite deep, and will only grow deeper. Parliament could just as well increase the strength of the Supreme Court by amending the 1997 law.”

There is another reason for the current critique of the ad-hoc judges being added to the Supreme Court, explains Salaar and that comes “from a suspicion that this follows so closely after the SC’s decision in the ‘reserved seats case’. And that suspicion is not entirely unjustified. Arguably, the chief justice was in the minority in a major constitutional case for the first time since 2015. So, some see this as an attempt to possibly reverse that. Of course, that view implies certain presumptions about the candidates but even setting those aside, there is at least a chance that it could disrupt the present balance.”

This critique would be tempered by the fact that “since the enactment of the SC Practice and Procedure Act, the effect of such a move has been blunted.” According to Salaar, “even if a CJ were to hypothetically ‘pack’ a court, they can’t also arrange benches to reflect that. It is still a committee of three judges that will be doing that. There is also, of course, the fact that appointments will first also have to be approved by the JCP.”

Another reason for criticising the move would be what Barrister Tahir says is the flaw in the “entire concept of ad-hocism”, which he says is “based on a firefighting scheme rather than systematic reforms”. If pendency is an issue, then why has the JCP “not made any attempt to bring the Sindh High Court at full strength when out of an approved strength of 40, only 31 judges are sitting? What reforms have been brought to the district courts to decrease the corpus of 82 per cent of the cases? When these additional judges complete their tenures, what happens thereafter? Do we go back to the usual or keep appointing ad hoc judges?”