An ad hoc decision?
February 16th, 2011
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.
Confused status
February 16th, 2011
The confusion over the Raymond Davis affair continues. The divergent statements coming from various PPP members add to this — especially when combined with the fact that the matter is before a court. It has also, apparently, cost former foreign minister Shah Mahmood Qureshi his job. The lack of agreement over whether or not Davis has diplomatic immunity and whether all the technical requirements in this respect had been fulfilled, has lingered on since the consulate employee shot dead two young men in the crowded Mozang area of Lahore late last month. PPP Information Secretary Fauzia Wahab’s most recent statement — maintaining that Davis is indeed protected by immunity and cannot be prosecuted — simply adds to the chaos. The law minister immediately said that Ms Wahab was making a ‘personal’ comment and the courts would decide the matter, while the same line has been taken by the Foreign Office in talks with the US ambassador in Islamabad.
Some two weeks after the incident, we still do not know exactly who Raymond Davis is; neither do we know exactly what happened at Mozang and, of course, we can only guess what will happen in the future. Ms Wahab’s comments, however, imply that her party may be considering giving in to mounting US pressure, even if this comes at the cost of our sovereignty. Islamabad has, after all, lost large portions of this already — as a result of drone attacks and other acts that assert Washington’s supremacy over us. The fact is that Mr Davis shot dead two people in broad daylight. It is odd we still know only little about who these men were and why they were carrying a gun. The third victim, run over by a consulate vehicle, appears to have been forgotten almost entirely.
The rule of law needs to be adhered to in the Davis case. But the mysteries that surround the affair need also to be solved. They go well beyond the issue of diplomatic immunity and raise key questions about what exactly is happening on our soil and for what reasons.