Why we should avoid adhocism

Through a recent press conference, the government announced that it intends to move a reference for banning the Pakistan Tehreek-e-Insaf as a political party with the Supreme Court of Pakistan as required by Article 17(2) of the constitution.

This comes only days after eleven judges of the Supreme Court decided that the PTI was and remains a political and parliamentary party and is entitled to reserved seats. Yet, this was not the most shocking news of the day. Just a few hours later, a letter from the Judicial Appointments Commission started doing the rounds for the appointment of four ad-hoc judges of the Supreme Court at a time when the composition of the Supreme Court is at capacity as per the constitution and the law.

I am of the strong opinion that such ad-hoc judges should not be appointed to the Supreme Court for the following reasons. I seek some liberty to raise the first point as it concerns public perception, but it is necessary to make it. The verdict in the reserved seats case that gave the PTI full share of the reserved seats for women and minorities was a decision of eight judges in the majority, and five judges either declaring the PTI entitled to a lesser portion of the reserved seats or none at all.

One net result of such a majority verdict is that the government lost its two-thirds majority in parliament. The government has not been shy of its ‘judicial reforms package’ increasing the age of retirement of Supreme Court judges. If four judges are added to the full court and assumptively added to the minority, the minority turns into a nine to eight majority (specifically ignoring the four judges who did not sit on the full court). With the government’s reference for a ban on the PTI being a virtual certainty, and such a reference being answered in the affirmative, giving the government the required two-thirds majority to pass the judicial reforms package, these appointments may be seen as motivated, especially in the case of extension of the term.

The words of Lord Hewit from 1924, “Justice must not only be done, but must also be seen to be done”, are illustrative of the fact that a strong judiciary cannot exist without public confidence. The argument is not that there is some plan or conspiracy, but it certainly may seem so for a member of the public – and why such appointments should be avoided.

Second, the constitution under Article 176 envisages that the number of judges of the Supreme Court shall be determined by an act of parliament. The Supreme Court (Number of Judges) Act, 1997 has determined that the number of judges of the Supreme Court other than the chief justice shall be 16.

Article 182, which is concerned with the appointment of ad-hoc judges, states that 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 increase temporarily the number of judges, only then may ad-hoc judges be appointed. The Supreme Court is already sitting at its full strength after the three recent elevations.

The Supreme Court held in the Al Jehad Trust case in 1996 that ad-hoc appointments could only happen for want of quorum of judges of the Supreme Court or a temporary reason. It becomes quite clear that the express words of the constitution do not allow for such appointments for the reasons stated in the Judicial Commission’s letter. It is of course within the domain of parliament to increase or decrease the number of judges.

Third, an example from the past will clarify why this provision exists. In the appeal of Zulfikar Ali Bhutto before the Supreme Court in 1978, a member of the bench Justice Qaiser Khan, seemed inclined towards acquittal. During the proceedings, he retired. It is in situations like this that the concept of an ad-hoc judge becomes necessary, but even though Justice Qaiser Khan should have been allowed to continue to sit as an ad-hoc judge for the hearing of this appeal, such an appointment was not made as the military junta of the time knew which side of the bench he was on.

Fourth, adhocism is seen as a pejorative term, for adhocsim only responds to the urgent instead of the important. An ad-hoc judge is appointed for a specific project, case, or period only. The entire concept of adhocism is based on a firefighting scheme rather than systematic reforms. Incidentally, on the same day as the letter of the Judicial Commission became public, the Supreme Court in the case of Luftullah Virk relying on its judgment in the recent case of Duniya Gul deliberated on the question of judicial delays. In the said order, the report of the Judicial Statistic of the Law and Justice Commission is referred stating that 82 per cent of the pendency of cases in Pakistan is before the district judiciary.

In the same way, there is a mammoth pendency before the high courts, compared to the much more miniscule pendency in the Supreme Court. Why then are high courts not sitting at full strength? 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?

Fifth, our history is filled with unconstitutionality and the executive’s interference in judicial affairs, and the same goes for the appointment of ad-hoc judges. When Benazir Bhutto took over as prime minister in 1993, she promised reforms regarding the appointment of judges. However, the Supreme Court and high courts were packed with ad-hoc judges. At one point in time, there were seven ad-hoc judges against ten permanent judges of the Supreme Court. It was in this respect that the Al Jehad Trust judgment came, barring such ad-hoc appointments.

Then during the time of Chief Justice Iftikhar Chaudhry, the extension of Justice Ramday's tenure as an ad-hoc judge of the Supreme Court was initially met with significant resistance. Despite this, the chief justice persisted in favouring another extension for Justice Ramday. However, due to vehement protests from the bar councils and associations of the time, he was ultimately compelled to withdraw. In the same way, the chief justice of the Sindh High Court in 2021 was being humiliated by not being elevated to the Supreme Court. He was offered only an ad-hoc appointment. He obviously refused and preferred to remain the chief justice of the Sindh High Court, but it did lead to a judicial crisis.

Sixth, in the Haj corruption case, the Supreme Court directed the government to ensure that civil servants were not hired on a contractual basis and the practice of re-inducting retired officers should be discouraged. The Supreme Court held that the re-hiring of retired civil servants makes for political interference in the working of civil services and that contract employment brings ad-hocism to the working of civil services, which runs counter to its basic character. This decision has been repeatedly reiterated by the superior courts. One may then ask why, if it’s good for the goose, it’s not good for the gander.

Seventh, currently, the leading legal representative bodies in Pakistan have expressed significant concerns and strong reservations regarding the appointment of ad-hoc judges. The legal community perceives this practice as an encroachment on the independence of the bar and a violation of the rights of senior lawyers, who, under the constitution, are eligible for appointment to the higher judiciary, including the Supreme Court.

The judiciary is a carriage made of two wheels of equal importance – the bench and the bar. When both have shown their disapproval of adhocism, why should it even be considered for judicial appointments? For these reasons, there is also a bill pending in parliament for the omission of Article 182 from the constitution. Perhaps, it is high time to act on it.

The writer is a Karachi-based barrister practising constitutional and administrative law.