An ad hoc judge cannot be appointed to hear routine cases, though there is an expression in Article 182 of the constitution, “or for any other reason”, which cannot be stretched to absurd limits
The legal fraternity is extremely depressed and profoundly demoralised over the passing of a resolution in a full court meeting of the Supreme Court judges to appoint two retired judges of the apex court as ad hoc judges. The appointment of ad hoc judges militates against the concept of independence of the judiciary, as permanency in appointments is the most important and vital ingredient.
In a case reported as PLD 1996 SC 324 it has been held that an ad hoc judge is not a judge of the Supreme Court, except for the purpose of the cases in which he sits and participates. This being so, an ad hoc judge does not enjoy security of tenure. In order to substantiate what is stated above, the example of Justice Saad Saud Jan can be quoted whose notification of appointment was withdrawn without assigning any reason. Though he was the acting chief justice but as far as tenure is concerned both ad hoc and acting judge follow the same principle. Therefore, the question arises whether an ad hoc judge, who does not enjoy security of tenure and possibly retains his position for other reasons, can apply his mind independently in accordance with the law and constitution, without being influenced by any internal or external factors.
The provisions contained in Article 182 of the constitution of Pakistan does envisage the appointment of an ad hoc judge but in emergent and exceptional circumstances to meet a want of quorum of judges of the Supreme Court to hold or continue any sitting of the court. For instance, presently contempt proceedings against some judges of the superior judiciary are pending adjudication before a four-member bench of the honourable Supreme Court. This honourable bench has passed an order whereby the alleged contemnors were issued show cause notices. The judges aggrieved by this order have filed appeals, so a larger bench is required to adjudicate upon the appeals filed. It is very important to point out here that some of the judges of the Supreme Court have been recused from the bench. In such situation if there is want of quorum for hearing this case, then the chief justice of Pakistan, after consulting the judicial commission and with the approval of the president of Pakistan, can request any person who has held the office of a judge of that court and three years have not elapsed after his ceasing to hold that office. An ad hoc judge cannot be appointed to hear routine cases, though there is an expression in Article 182 of the constitution, “or for any other reason”, which cannot be stretched to absurd limits.
This expression, “or for any other reason”, cannot be read independently from other provisions contained in this article. The doctrine of Ejusdem Generis states that if a general word is followed by a specific word, the general word would take its colours and meanings from the specific word. Thus the appointment of ad hoc judges for a period of one year or two years and assigning them routine work is in violation of the constitution.
The lawyers’ community that laboured hard and made sacrifices for the independence of the judiciary are extremely unhappy as ad hoc appointments in the apex court are not in consonance with this principle. If the honourable Supreme Court feels that on account of backlog or pressure of work, or in the wider interest of the institution more judges are required, this can be done by increasing the sanctioned strength of the Supreme Court judges through an ordinance, later to be made an act of parliament. The honourable chief justice of Pakistan can request the federation in this regard. The federation itself had increased the sanctioned strength of the Supreme Court judges but the same was restored to original strength through the July 31 judgment.
The presence of two ad hoc judges in a full court meeting is also violating Article 182, as under Article 260 of the constitution the definition of a judge does not include an ad hoc judge, meaning thereby they are not Supreme Court judges for the purpose of other articles of the constitution. Article 182 does not envisage that ad hoc judges should attend any administrative meeting of the judges of the Supreme Court. Both the judges were strangers in the meeting so their presence therein is a violation of the constitution.
The adoption of a resolution is also objectionable for the reason that if the president of Pakistan does not approve of these ad hoc appointments and this issue is brought before the Supreme Court of Pakistan, then the question will arise whether those honourable judges who have already exposed their minds by adopting the resolution can adjudicate upon this matter. The judges who are meant to establish and maintain the rule of law cannot deviate or ignore any provision of the law and the constitution. Lastly, adopting a resolution by the judges is unprecedented and in Pakistan we are wrongly creating this tradition and convention. At the end, as always, I am forced to rely on Faiz Ahmed Faiz to give a clearer expression to my present state of despondency.
“Ye daagh daagh ujala, yeh shab
gazeeda sehar
Woh intizar tha jis ka, yeh woh
sehar to nahi”
(This stained light, this eclipsed dawn
Is not the dawn we had long awaited).
The writer is an advocate
The legal fraternity is extremely depressed and profoundly demoralised over the passing of a resolution in a full court meeting of the Supreme Court judges to appoint two retired judges of the apex court as ad hoc judges. The appointment of ad hoc judges militates against the concept of independence of the judiciary, as permanency in appointments is the most important and vital ingredient.
In a case reported as PLD 1996 SC 324 it has been held that an ad hoc judge is not a judge of the Supreme Court, except for the purpose of the cases in which he sits and participates. This being so, an ad hoc judge does not enjoy security of tenure. In order to substantiate what is stated above, the example of Justice Saad Saud Jan can be quoted whose notification of appointment was withdrawn without assigning any reason. Though he was the acting chief justice but as far as tenure is concerned both ad hoc and acting judge follow the same principle. Therefore, the question arises whether an ad hoc judge, who does not enjoy security of tenure and possibly retains his position for other reasons, can apply his mind independently in accordance with the law and constitution, without being influenced by any internal or external factors.
The provisions contained in Article 182 of the constitution of Pakistan does envisage the appointment of an ad hoc judge but in emergent and exceptional circumstances to meet a want of quorum of judges of the Supreme Court to hold or continue any sitting of the court. For instance, presently contempt proceedings against some judges of the superior judiciary are pending adjudication before a four-member bench of the honourable Supreme Court. This honourable bench has passed an order whereby the alleged contemnors were issued show cause notices. The judges aggrieved by this order have filed appeals, so a larger bench is required to adjudicate upon the appeals filed. It is very important to point out here that some of the judges of the Supreme Court have been recused from the bench. In such situation if there is want of quorum for hearing this case, then the chief justice of Pakistan, after consulting the judicial commission and with the approval of the president of Pakistan, can request any person who has held the office of a judge of that court and three years have not elapsed after his ceasing to hold that office. An ad hoc judge cannot be appointed to hear routine cases, though there is an expression in Article 182 of the constitution, “or for any other reason”, which cannot be stretched to absurd limits.
This expression, “or for any other reason”, cannot be read independently from other provisions contained in this article. The doctrine of Ejusdem Generis states that if a general word is followed by a specific word, the general word would take its colours and meanings from the specific word. Thus the appointment of ad hoc judges for a period of one year or two years and assigning them routine work is in violation of the constitution.
The lawyers’ community that laboured hard and made sacrifices for the independence of the judiciary are extremely unhappy as ad hoc appointments in the apex court are not in consonance with this principle. If the honourable Supreme Court feels that on account of backlog or pressure of work, or in the wider interest of the institution more judges are required, this can be done by increasing the sanctioned strength of the Supreme Court judges through an ordinance, later to be made an act of parliament. The honourable chief justice of Pakistan can request the federation in this regard. The federation itself had increased the sanctioned strength of the Supreme Court judges but the same was restored to original strength through the July 31 judgment.
The presence of two ad hoc judges in a full court meeting is also violating Article 182, as under Article 260 of the constitution the definition of a judge does not include an ad hoc judge, meaning thereby they are not Supreme Court judges for the purpose of other articles of the constitution. Article 182 does not envisage that ad hoc judges should attend any administrative meeting of the judges of the Supreme Court. Both the judges were strangers in the meeting so their presence therein is a violation of the constitution.
The adoption of a resolution is also objectionable for the reason that if the president of Pakistan does not approve of these ad hoc appointments and this issue is brought before the Supreme Court of Pakistan, then the question will arise whether those honourable judges who have already exposed their minds by adopting the resolution can adjudicate upon this matter. The judges who are meant to establish and maintain the rule of law cannot deviate or ignore any provision of the law and the constitution. Lastly, adopting a resolution by the judges is unprecedented and in Pakistan we are wrongly creating this tradition and convention. At the end, as always, I am forced to rely on Faiz Ahmed Faiz to give a clearer expression to my present state of despondency.
“Ye daagh daagh ujala, yeh shab
gazeeda sehar
Woh intizar tha jis ka, yeh woh
sehar to nahi”
(This stained light, this eclipsed dawn
Is not the dawn we had long awaited).
The writer is an advocate
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