WHEN Chief Justice Iftikhar Chaudhry publicly mentioned the need for more judges on the Supreme Court if an appeal against the prime minister’s conviction is to be heard, he was technically correct. The seven justices who ruled against Mr Gilani cannot hear an appeal against their own order and three other justices are for various reasons believed to be unavailable to hear an appeal — necessitating the appointment of more judges. Justice Anwar Jamali’s health does not permit him to hold hearings at present — he would need to be replaced with an additional or acting justice under Article 181 of the constitution. Justice Tassaduq Hussain Jillani has previously declined to participate in hearings where Mr Gilani is the defendant because the two are related — necessitating an ad hoc judge as replacement under Article 182. Similarly, if Justice Shakirullah Jan continues as acting chief election commissioner, he would also have to be replaced by an ad hoc judge in any appeal against the SC’s conviction of Mr Gilani because depending on the outcome of the appeal, Justice Jan may ultimately have to sit in judgment over Mr Gilani in any disqualification reference that is brought before the Election Commission.

However, setting the numbers aside for a moment, Chief Justice Chaudhry’s comments are quite astonishing. Whether Mr Gilani’s legal team will choose to appeal against his conviction is not known yet and it almost certainly will not be known until the detailed judgment is issued by the SC. And while the appeal has yet to materialise, it seems unusual to talk about how many judges may not be available at an unspecified date in the future. Stranger yet is to mention the numbers but then not the names. If Shakirullah Jan is indeed one of the judges who will be unavailable to hear the prime minister’s appeal because of a potential conflict of interest in his role as acting CEC, then that implies Justice Jan will still be acting CEC at the time the prime minister’s appeal lands before the SC. But a permanent CEC could be appointed by a parliamentary committee before Mr Gilani’s appeal comes before the court — in which case Justice Jan would no longer have a conflict of interest and there would be no need for an ad hoc judge to replace him.

The comments by the chief justice have unnecessarily stirred up controversy, particularly with the judicial commission member and PBC representative, Khalid Ranjha, coming out against the idea. In the present environment, perhaps it would be wiser for the judiciary to limit its comments to those made from the bench and not from the lectern.