WHILE the Judicial Commission rightly won praise for its reported decision to defer action on the move to appoint two ad hoc judges on the Supreme Court, it is necessary to evolve clear and fair guidelines on such appointments in the interest of friction-less relations between the judiciary and the executive.

For two consecutive years, this matter has caused a costly and dangerous confrontation between the two state organs. Last year, the president’s refusal to accept the Supreme Court (SC) chief justice’s recommendation for retaining Justice Ramday as an ad hoc judge was one of the causes of an ugly crisis that ended with the presidency’s change of track.

Perhaps a desire to avoid a repetition of that episode inspired the Supreme Court to pass a resolution in support of the plea for giving Justice Ramday another extension. But since the recommendation and the launching pad used to advance it were both unusual they did not go unchallenged by lawyers.The Pakistan Bar Council and the Supreme Court Bar Association and several individuals expressed reservations not only on the second-time appointment of a retired judge as an ad hoc judge of the SC but also on the manner in which ad hoc appointments are made. These reservations related to principles and could not be taken as any aspersion on Justice Ramday’s credentials as a judge as he has earned a special place in the history of Pakistan’s judiciary with quite a few landmark judgments, especially the SC verdicts of July 2007 and July 2009.

His name figured in the controversy for three reasons. First, a second-time extension hit the constitutional principle of retirement at the age of superannuation. Secondly, the reason reportedly advanced for retaining his services was debatable. And, thirdly, if Justice Ramday did not wish to be reappointed, a recommendation in his favour breached the well-known convention that nobody can be appointed an ad hoc judge without his consent.

Two arguments were reportedly advanced in support of the plea to reappoint Justice Ramday and Justice Jafri. First, the SC needed their services in order to deal with its increased workload. However, if the shortage of judges on the apex court is not of a temporary nature it cannot be met by recourse to the provision for ad hoc judges, which is a remedy designed for emergencies. The second argument was that the SC needed the services of a judge of Justice Ramday’s calibre to remain available to it. However well merited the compliment to Justice Ramday, this argument raised an issue of much greater import than the appointment of ad hoc judges.

On the one hand, it did not reflect to the credit of the distinguished members of the SC bench, and on the other, it suggested a lack of confidence in the ability of high court judges eligible to be elevated to the highest judicial forum. This raises the question of the prevalent system’s capacity to throw up judicial authorities of requisite qualifications, a matter that deserves serious thinking by jurisconsults on both sides of the bench-bar divide.

In the course of the debate on the appointment of ad hoc judges selective references have been made to the Judges Case of 1996. In that case the issue had been clinched by Justice Ajmal Mian. First he noted that “there seems to be unanimity of views among the learned counsel for the petitioners/appellants and learned amicus curiae that an ad hoc judge in the Supreme Court cannot be appointed in presence of permanent vacancy”, and then declared: “i) That no ad hoc judge can be appointed under the above article while permanent vacancies exist; ii) that an ad hoc judge is to act for a short period to attending the sittings of the Supreme Court; and iii) that he is not a judge of the Supreme Court except for the purpose of the cases for which he sits and participates”.

However, the Judges Case apart, it is necessary to concentrate on the argument against relying on the provision for ad hoc judges to solve a permanent problem.

Before the 1973 constitution there was no provision in Pakistan’s constitutions for the appointment of retired federal/SC judges as ad hoc judges on the same court. The 1935 Act made no reference to temporary judges of the federal court but it did provide for acting judges and additional judges of high courts. The only change made in 1947 was that the governor-general’s power to act in his discretion was deleted. The 1956 constitution provided for the temporary elevation of high court judges to the SC only for meeting the demands of quorum or situations in which no sitting was possible. The 1962 document retained this provision but added “for any other reason” as a ground or bringing high court judges temporarily in the SC.

The authors of the 1973 constitution enlarged the provision for ad hoc judges on the SC. They retained the earlier provision regarding the temporary elevation of high court judges and added a new provision whereby a retired judge of the SC (who had retired less than three years earlier) could also be appointed as an ad hoc judge.

It is possible that they were influenced by the Indian model. The constitution of India has two separate articles on the subject. One article provides for the appointment of high court judges as ad hoc judges of the Supreme Court. The other article provides for “attendance of retired judges of the Supreme Court at sittings of the Supreme Court”.

The provision of the 1973 constitution (Article 182) has survived the mauling of the basic law by self-appointed rulers of Pakistan as well as large-scale changes made vide the 18th Amendment. It can be argued that by combining the two articles of the Indian constitution into a single provision the distinction between ad hoc judges and those invited to join the sittings of the court has been overlooked.

Terms used in legal texts determine the essence of laws. Those described as ‘judges’, ‘acting judges’, ‘ad hoc judges’, ‘judges in attendance’ may be equal in authority and jurisdiction but the choice of different terms can only mean a distinction in appointments made during normal circumstances and those made to overcome short-term needs. Thus the long-term problems of the SC cannot be resolved through ad hocism. The discord between the judiciary and the executive on this point is not warranted by reason.

This year’s controversy has also underscored the fact that the appointment of judges is not a matter between the executive and the judiciary only. Both of them have to guard their reputation for probity in the eyes of the people. The respect the citizens have for the judiciary is only one of the positive features of life in Pakistan that has survived much turmoil. But it would be wrong for any state organ to take the people for granted. Especially the lawyers, for it is through them that ordinary citizens learn what is good about the judiciary and what is not.