An ad hoc decision?

A full bench of the Supreme Court has proposed the appointment of two retiring members of the Court as ad hoc judges: Justice Khalilur Rehman Ramday, who was already ad hoc for one year, and Justice (retd) Rehmat Hussain Jafferey, who had retired as Supreme Court judge in November 2010. The appointments have been made under Article 182 of the Constitution “to work for a period of one and two years, respectively”. With two new elevations, the Court was already full strength.

It is the pendency problem that has compelled the Court to retain the two ad hoc judges. In normal circumstances, and given the new strength awarded to the Court by the recent constitutional amendments, this would have passed without notice. Much of the additional load of work has originated from public interest litigation — also noted as suo motu notice — and close surveillance of the executive’s execution of court orders.

The current president of the Supreme Court Bar Association (SCBA), Asma Jahangir, has raised some objections to the appointment of ad hoc judges. This, too, is nothing out of the ordinary. The lawyers working at the apex level are a part of the total judicial machinery that renders justice to the nation. The lawyers at the SCBA offer support or opposition, given their current representation. Under the last president, the SCBA could not have disagreed with the ad hoc appointments.

Ms Jahangir has verbalised some reservations that have been recorded at the political level about the tendentiousness of the Chaudhry Court. One can say that the lawyers elected her to give voice to the widely-held opinion that the Court has been crossing its constitutionally established boundaries. She has found fault with the method of passing a full-bench resolution and called it inappropriate. The other objection pertains to the reappointment of Justice Ramday.

Her remark was: “It comes to my notice time and again that, by and large, lawyers who appear in the Supreme Court in different cases were counting the days of Justice Ramday’s retirement.” Her objection to judicial ad hocism is also routine and it has been offered in the past too: “It stalemates the judicial process of fresh appointments.”

Ad hocism was once the habit of the executive because of its dominance of the judiciary as an institution. The famous Judges’ Case of 1996 had stated that “appointment of ad hoc judges against the permanent vacancies at the Supreme Court violates the Constitution”. It is to be noted that in the present case, the ad hoc judges have been appointed in addition to the full strength of the Court.

An officer of the Court has explained that the ad hoc appointments were necessitated by the load incurred by long hearings incurred by the 18th Amendment — five months — and similarly time-consuming cases like the NRO review case, the Bank of Punjab case, the Hajj scandal and the Reko Diq dispute. In addition, there was the tendency of the Court to hear suo motu cases.

The Court has been aggressive and not too discreet with obiter dicta on the part of the judges, in particular Justice Ramday, against whom Ms Jahangir has complained. The community of lawyers, once squarely behind the restoration of the Iftikhar Chaudhry-led Supreme Court, has been feeling uncomfortable with this tendency. Also, the overall ‘activism’ of the Court has led to the polarisation of legal opinion and politicisation of the Court itself. Judicial activism entails a backlash that has been felt by the Indian Supreme Court, where it all started, compelling it to roll it back. Some decisions of the apex court, especially in the domain of the economy, have had the effect of discouraging investors from the country. In economic terms, such a stance is seen by some to be isolationist and encroaching on the jurisdiction of the executive.

Prominent lawyers, once agitating for the restoration of the Court under Justice Iftikhar Muhammad Chaudhry, have felt that their work is greatly hindered by the suo motu direction of the apex and high courts. In fact, it has been argued that the high courts are not even legally immaculate in this regard. The current voice of dissent has correctly arisen from within the legal community.

Published in The Express Tribune, February 16^th, 2011.