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Huzaima Bukhari & Dr. Ikramul Haq
The advocates of independence of judiciary at the time of appointment of judges in High Courts on temporary basis themselves commit unconstitutional act. This practice is going on for the last many years –during all the governments—and nobody has ever raised voice against it. The unwanted practice of appointing additional judges in High Courts “for such a period as determined by the President, not exceeding the period prescribed by law” has marred the independence of judiciary. The time has come that this procedure should be discontinued. It needs serious consideration of all of us—the issue is vital relating to dispensation of justice in the country.
No doubt, this is a most undesirable exercise as additional judges are members of the superior judiciary and their appointment on temporary basis poses a threat to the independence of the Judiciary. It undermines the faith of public at large in dispensation of justice, as a person working on probation as a judge remains conscious in making orders that may displease the persons who have a say in his confirmation. Appointment on temporary basis deprives a judge from dispensing justice fearlessly and with an independent mind. There is no such concept in the United Kingdom from where we have inherited the present legal system; or elsewhere in any democratic dispensation. Surprisingly, judges in subordinate judiciary are not appointed on ad hoc basis and their tenure of service is neither short nor uncertain. Hence, contrary practice at the level of High Court is quite shocking, disreputable, reprehensible and deplorable.
Article 197 of the Constitution empowers the President to appoint duly-qualified persons to be additional judges if it appears to him that:
(a) the office of a judge of a High Court is vacant; or
(b) a judge of a High Court is absent or is unable to perform the function of his office for any other reason; or
(c) for any reason it is necessary to increase the number of judges of a High Court
If the preconditions set out in Article 197 are satisfied and the President proceeds to exercise the power to appoint an additional judge, he can appoint only such person who is qualified and fulfills all the requirements of Article 193 of the Constitution. The eligibility qualifications for appointment as a judge of a High Court are given in Article 193(2) and it can be said without any fear of contradiction that the qualifications for a temporary judge to be appointed under Article 197 are the same as of a regular judge under Article 193.
It may also be emphasized that as far as pay, privileges, duties, obligations, adjudicatory powers are concerned an additional judge appointed under Article 197 and a judge of a High Court appointed under Article 193 are at par, the only difference being term of tenure.
No government has ever bothered to fill the full strength of any High Court. On the contrary, it has been a consistent policy of all the regimes—civil and military alike—since 1973 to use Article 197 as a gateway through which almost every judge has to pass before being made permanent. The obvious motive has been to test his allegiance rather than his eligibility. A number of judges appointed in High Courts, before being made permanent, had to get a number of extensions. It is evident that in practice the true intention and purpose of Article 197 has not been fulfilled. Unashamedly, it has been abused to appoint judges professing loyalty, keeping them on tenterhook till they can prove ‘usefulness’ for their appointers.
It is difficult to understand why judges are being appointed as additional judges even now, when there is an undisputed need to appoint permanent judges. Surely there is no financial gain to the government as the expenditure involved is the same whether a judge is an additional judge or a permanent judge. There are a number of drawbacks in continuing with the existing practice:
(a) The periodic processing of the papers relating to the renewal of the term of an additional judge consumes a lot of time of the high functionaries who have to be consulted under Article 193. This runs a risk of differences of opinion in some cases as noticed recently.
(b) An additional judge would not be in a position to perform his duties as independently as a permanent judge, on account of the fact that an additional judge is subject to a fresh test of fitness and suitability. It is obvious that he would not be in a position to deal with the matters placed before him without fear of incurring the displeasure of one or the other key-figure who has a say in his extension or confirmation.
(c) Dropping an additional judge at the end of his initial term of office on the ground that there are allegations against him, without properly ascertaining the truth of the allegations, is detrimental to the independence of judiciary. There is no provision whatsoever for giving an additional judge an opportunity to be heard where his integrity has been impugned. If a permanent judge cannot be removed on the ground that his reputation is bad, there is little justification for denying an extension to an additional judge on the same ground.
(d) Bringing in the consultative process covering suitability under Article 193 at the stage of deciding on the continuance of an additional judge is inconsistent with the principle of natural justice. An additional judge is not appointed on probation. He is appointed, after passing the suitability test at the initial stage, to dispose of cases in the High Court in accordance with his oath “without fear or favour, affection or ill-will.” So, if the additional judge is not on probation how can his continuance, either as an additional judge or a permanent judge, be made contingent on the evaluation or assessment of his suitability? Clearly, the answer would be in the negative. An additional judge is as much a judge as a permanent one with the same jurisdiction and powers. To treat him on probation would not only detract from his status and dignity but also affect his independence by making his continuance as a judge dependent on the good opinion of the Chief Justice of the High Court, the Governor, the Chief Justice of the Supreme Court and the President of Pakistan.
(e) There is no denying the fact that security of tenure ensures judicial independence, while short-term tenure or appointment on ad-hoc basis can cause insecurity directly impinging on judicial independence.
(f) Article 193 of the Constitution bestows a primary obligation on the President to provide adequate permanent strength to every High Court to enable it to cope with its normal business so as to ensure expeditious disposal of cases. The strength has to be reviewed from time to time so that arrears do not accumulate and justice to litigants is not unduly delayed. The stark reality prevailing in all the four High Courts make it clear that the increase of business is not of a temporary character but is a permanent phenomenon and that the arrears have accumulated to a disturbing level.
The Supreme Court of Pakistan in PLJ 1996 SC 882 has expressed its resentment at the appointment of ad-hoc chief justices. It is a pity that successive governments have been “virtually playing with the courts”, to use the words of Indian Justice E.S. Evnkataramiah, who vehemently criticized the use of Article 224 of the Indian Constitution by the President under similar circumstances.
What is needed is that the President must take immediate steps to provide full strength of permanent judges to every High Court. Once all permanent vacancies are filled, it will be the duty of Chief Justice of High Court to ensure that justice is dispensed expeditiously.
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The writers, tax lawyers, are visiting professors at Lahore University of Management Sciences (LUMS).