ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Friday approved the appointment of two former judges of the Supreme Court — Justice Mazhar Alam Miankhel and Justice Sardar Tariq Masood — as ad hoc members of the apex court for a one-year period.

However, these appointments were not without opposition, as the nomination of Justice Masood was approved with a majority vote of 8-1, with Justice Munib Akhtar, a member of the commission, dissenting on technical grounds.

Similarly, the recommendation of Justice Miankhel, although approved, was also met with opposition from senior puisne judge Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, and Justice Yahya Afridi.

Justice Akhtar was of the view that these retired judges were senior judges of the top judiciary and, therefore, it did not look well to see a senior judge sitting alongside junior judges in a junior position on the bench.

Justice Masood’s appointment okayed by eight of nine JCP members; Justice Miankhel has already conveyed unwillingness to take up the job

Initially, Chief Justice of Pakistan (CJP) Qazi Faez Isa had recommended the appointment of retired justices Mushir Alam, Maqbool Baqar, Mazhar Alam Miankhel and Sardar Tariq Masood as ad hoc judges.

The idea was to appoint these judges for a period of three years, to serve as judges of the top court in addition to the 17 permanent judges already serving on the apex court, whose sanctioned strength is 17.

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Later, Justice Mushir Alam and Justice Maqbool Baqar expressed their regrets to accept the offer.

Akhtar Hussain, who represents the Pakistan Bar Council (PBC) in the JCP, told Dawn that the meeting, which lasted almost two hours, discussed at length various legal and constitutional matters related to the appointment of ad hoc judges in the Supreme Court, particularly since the recommendations have been made under Article 182 of the Constitution, rather than Article 175-A.

Since these appointments are not regular ones in the superior judiciary, the discussion also revolved around the kind of work to be assigned to these ad hoc judges, he said.

Article 182 deals with the appointment of ad hoc judges and empowers the CJP to appoint them with the approval of the president in consultation with the JCP.

According to Mr Hussain, before the JCP could meet, Justice Miankhel, who had earlier conveyed his willingness, later withdrew his offer to become a judge on an ad hoc basis in a WhatsApp message, citing the controversy generated on social media.

During the meeting, the JCP members suggested that Justice Miankhel should be approached again to seek his fresh consent, to ascertain whether he was still willing to join as an ad hoc judge. However, Justice Shah, Justice Akhtar, and Justice Afridi were of the view that since the retired judge had already declined the offer, he should not be considered for such appointments.

Mr Hussain explained that since ad hoc appointments were not made under Article 175-A of the Constitution, no approval from the eight-member bipartisan Parliamentary Committee was required to endorse the JCP’s recommendations. Instead, this is the prerogative of the CJP, who makes the appointments after seeking approval from the President and consulting with the JCP.

“This is an exercise, done prior to the 18th constitutional Amendment, in which the CJP, with the President’s permission, consults the concerned provincial chief justices as well as the governors, in view of the 1996 Al-Jihad Trust case,” he said.

Mr Hussain said the three-judge committee constituted under the Supreme Court (Practice and Procedure) Act 2023 will determine which cases will be assigned to these ad hoc judges. He emphasised that the appointment of these retired judges was made with the sole purpose of clearing the backlog, particularly of criminal cases. He noted that out of the total 58,000 pending cases in the Supreme Court, 10,000 alone are criminal cases.

Mr Hussain also expressed regret over the smear campaign against the appointment of retired judges as ad hoc members of the apex court, saying such criticism was solely aimed at further polarising society for petty political gains.

He recalled that some members of the PBC from Khyber Pakhtunkhwa and Punjab had recently met the CJP to emphasise the necessity of invoking Article 182(a)(b) of the Constitution for appointing ad hoc judges in the Supreme Court to address the backlog of cases which was causing ordinary litigants to suffer due to the prioritisation of political cases. It was these suggestions that led the CJP to convene the JCP meeting to appoint retired judges as ad hoc members of the Supreme Court, he added.

Published in Dawn, July 20th, 2024