The Judicial Commission for appointment of superior judiciary, on Thursday, recommended the names of two former judges of the honorable Supreme Court of Pakistan – Justice (Retd.) Tariq Pervez and Justice (Retd.) Khilji Arif Hussain – as ad hoc judges of the honorable Supreme Court, for a period of one year. This recommendation of the Judicial Commission which, per judgments of the honorable Supreme Court (e.g. Munir Hussain Bhatti’s case (PLD 2011 SC 407) and Presidential Reference No. 01 of 2012 (PLD 2013 SC 279)), is expected to receive a definite nod from the President in the coming days. Nonetheless, the decision to appoint ad hoc judges to the Supreme Court has been the subject of much criticism by the respective Bar Councils as well as eminent jurists, for being against the spirit of our Constitution as well as the jurisprudence developed by our superior Courts.

The issue at hand invites a fresh look at the provisions of the Constitution that relate to the Judicature; in particular Article 175A, Article 177, and Article 182 of the Constitution, along with corresponding judgments by the honorable Supreme Court of Pakistan.

Provisions relating to the judicature are contained in Part VII of the Constitution (Article 175 – Article 191). In this regard, Article 175 establishes, inter alia, the Supreme Court of Pakistan, and Article 177 stipulates that judges of the honorable Supreme Court shall be “appointed” in accordance with the procedure laid down in Article 175A (which includes a Judicial Commission and a Parliamentary Committee). For all intents and purposes, Article 177 is the only provision of the Constitution through which (regular) “appointment” can be made to the Supreme Court. However, under Article 181 of the Constitution, in case a seat on the Supreme Court is “vacant”, or a Judge of the honorable Supreme Court is “absent or unable to perform the functions of his office”, the President may require a Judge of the High Court to “act temporarily” as a Judge of the Supreme Court.

Separately, under Article 182 of the Constitution, a person may be asked to function as an “ad hoc Judge” of the Supreme Court, if such a person fulfills certain (stringent) conditions. Per the constitutional command, if “for want of quorum”, it is “not possible” to hold a sitting of the Supreme Court, or (alternatively) if it is “necessary” to temporarily increase the number of judges on the honorable Supreme Court, then (and only then) the Chief Justice of Pakistan may, “in consultation with the Judicial Commission” and with the approval of the President, inter alia, “request” a former Judge of the Supreme Court, “to attend sittings of the Supreme Court as an ad hoc Judge”.

Importantly, Article 182 further stipulates that “while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court”.

That from the very text of the Constitution, a number of issues become clear. First, for the honorable Chief Justice to consider making someone an ad hoc Judge of the Supreme Court, it is imperative that the same be ”necessary”. If it is merely ‘advisable’ or ‘beneficial’, it does not meet the bar set by Article 182 of the Constitution.

Second, the substantive text of Article 182 of the Constitution does not “appoint” a person to be a Judge of the Supreme Court (even though the title of the Article claims to do the same). Instead, the said Article (merely) empowers an ad hoc Judge to “attend sittings” of the Supreme Court, and exercise the judicial “power and jurisdiction” of a Judge of the said Court, for the time that he/she is sitting on the Court. As such, the conspicuous absence of the word ‘appoint’ from the text of Article 182 must be deemed purposeful so as to demonstrate the legislative intent that an ad hoc Judge is not a duly “appointed” Judge of the Supreme Court, and thus (through the constitutional lens) enjoys no associated benefits, privileges or perks of the Supreme Court, outside of the Court room.

Third, this non-regular status of an ad hoc Judge is further confirmed by the fact that the Chief Justice of Pakistan (as opposed to the President), requests a person to serve as an ad hoc Judge. Furthermore, per Article 182, the same is done through only a partial recourse to the procedure laid down in Article 175A – specifically, there is no requirement to refer the matter to the Parliamentary Committee. Also, it is important to recognize the fact that the definition of a “Judge”, under Article 260 of the Constitution, does not include any mention of an ad hoc Judge.

In light of these nuances, which distinguish an ad hoc Judge from a regularly “appointed” Judge of the Supreme Court, making the ad hoc Judge an anomaly on the Court, our jurisprudence frowns upon such appointments, especially in the presence of permanent vacancy, as was noted in the case of Al-Jehad Trust Vs Federation of Pakistan (PLD 1996 SC 324). From the jurisprudential perspective, opposition to ad hoc Judges stems from a belief that either the full (regular) strength of the Supreme Court should be able to tackle any ‘necessity’ that comes in the path of the Court, or (alternatively) the Government should be requested to increase the strength of the Court, in order to meet the expanding demands of a growing judicial backlog.

Plugging the gaps through ad hoc judicial appointments not only undermines public confidence in the regular appointees of the Supreme Court, but it also tarnishes the independence of judiciary, since the ad hoc Judges do not enjoy the fill powers and privileges of a Judge of the Supreme Court.

In fidelity to this idea, in the year 2010, the Bar Councils of the time vehemently opposed the induction of Justice (Retd.) Khalil ur Rehman Ramday as an ad hoc Judge of the Supreme Court by the then Chief Justice Iftikhar Chaudhary. The move, at the time, was seen as an attempt by Iftikhar Chaudhary to stack the Court with his allies and loyalists, in order to strengthen his judicial stance in regards to the then challenge to the 18th Constitutional Amendment and other pending (anti-government) cases.

Sadly, today, despite benign threats of protests, peppered with press conferences, the respective Bar Councils and the media have failed in demonstrating purposeful opposition to the induction of ad hoc judges to the Supreme Court. Just because these are milder times, compared to the era of Chaudhary Court, does not mean that induction of ad hoc Judges today is any less significant to our jurisprudence than it was five years ago.

Divorced from the merit and intellect of Justices (Retd.) Tariq Pervez and Khilji Arif Hussain, and without casting any shadow on their judicial abilities, the induction of ad hoc Judges to the Supreme Court must be vociferously opposed by members of the Bar; not for any personal reason or motivation, but only to uphold consistency as well as the mandate and spirit of our Constitutional jurisprudence.