The President’s approval of appointing the Chief Justice of Sindh as an ad hoc judge of the Supreme Court, despite the lack of consent of the latter, is a prime example of coercive ad hocism. Appointing an ad hoc judge is a provision in the Constitution of Pakistan (Article 182) which needs to be used when and if a temporary increase in the strength of the Supreme Court is required. However, the Constitution is silent on some important issues, such as, whether the Chief Justice of a High Court can be appointed as an ad hoc judge, and whether such appointment be made without their consent. Silence is further seen regarding the aftermath of such Chief Justice’s refusal to take oath as an ad hoc judge.
Article 182 states that the Chief Justice of Pakistan, in consultation with the Judicial Commission and with the approval of the President, can request any former judge of the Supreme Court, provided it has not been more than three years since their retirement, to attend sittings of the Supreme Court as an ad hoc judge. Furthermore, it necessitates an additional consent of the Chief Justice of a High Court if the Supreme Court so requires that a judge of that High Court is to attend sittings as an ad hoc judge. However, no express provision exists for the appointment of a Chief Justice of a High Court as an ad hoc judge.
The first matter is whether a provincial Chief Justice can be appointed as an ad hoc judge. While the Constitution remains silent on this matter, it does not either prescribe illegality in appointing a provincial Chief Justice as an ad hoc judge of the Supreme Court. There also exists the example of Justice Maulvi Mushtaq Hussain who was the Chief Justice of the Lahore High Court and was then elevated as an ad hoc judge of the Supreme Court. A precedent in this regard is therefore clear and established.
On the issue of consent, it seems that when referring to the appointment of a former judge of the Supreme Court is concerned, Article 182(1) uses the word ‘request’ which by its very meaning requires consent for fulfillment of such request. However, when referring to appointment of an existing judge of the High Court, the only consent sought is from the Chief Justice of that High Court and not the judge himself who is being appointed on ad hoc basis.
This creates a distinction between appointment of a retired SC judge and a sitting judge of a High Court. It may then be argued that the Chief Justice of the High Court being, in a sense of ‘higher authority’, can coerce a judge of his High Court to be appointed as an ad hoc judge simply by giving his consent but not taking the consent of the judge being appointed. By the same token, then, the Chief Justice of Pakistan, the Judicial Commission and the President may appoint a Chief Justice of a High Court as an ad hoc judge of the SC even in absence of his consent.
But, the main question remains: what if the Chief Justice refuses to take oath. Article 206 states that if a judge of a High Court does not accept appointment as a Judge of the SC, he shall be deemed to have retired from his office. However, the provision speaks about rejecting appointment as a permanent judge and not an ad hoc judge.
The Latin word ‘ad hoc’ carries the meaning for this problem which denotes the temporary nature of such appointment. However, an ad hoc judge of the apex court enjoys the same powers and jurisdiction as a permanent judge of that court. Apex Court’s interpretation of Article 55 of the 1962 Constitution (having almost the same wording as Article 182 of the current Constitution), laid down the principle that by becoming an ad hoc judge of the Supreme court, the judge does not cease to be a judge of the High Court. If so, then an ad hoc appointment is in addition to him being a High Court judge. Therefore, refusal to take oath as an ad hoc judge would not affect his position as a High Court judge and he may continue as such.
Lahore High Court, on the other hand, while dealing with Article 182 of the 1973 Constitution has stated that once a High Court judge is elevated as an ad hoc judge, he can no longer decide matters which were before him in the High Court. An SC decision in 1990 seems to support this concept. If appointment as an ad hoc judge is taken to be a fresh appointment which severs the previous appointment, it can be argued that upon approval by the President, the High Court judge, or Chief Justice (as the case may be), ceases to be such and now has to take oath as an ad hoc judge or simply fall prey to Article 206 of the Constitution.
Howsoever the events unfold, this is without doubt, a history in the making.
Published in The Express Tribune, August 23rd, 2021.
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