Expanding the Supreme Court

Late last month, the Senate of Pakistan unanimously passed a bill to increase the strength of the Supreme Court of Pakistan from 16 puisne judges to 26, in addition to the Chief Justice of Pakistan. The stated reason was that “Pakistan’s estimated population is 191.71 million in 2015 and number of judges of Supreme Court for such large number of population is only 17. This is one of the major causes which hinder the dispensation of speedy justice.” This reasoning should make us stop and think. While this bill came out of a 350-page report of the Committee of the Whole in the Senate (meaning when the full membership of the Senate sits as a Committee), singling out an increase in the number of judges as the most important and first reform for ‘speedy justice’ is a misplaced good intention.

A comparison with other countries and the strengths of their Supreme Courts can easily put the issue into perspective. India, which has a population of 1.2 billion, has a sanctioned strength of 31, Bangladesh which has almost the same population as ours has at the moment nine judges, the UK has a dozen, and the US nine justices. Hence, with the current sanctioned strength of 17 (including the Chief Justice), Pakistan does not fare badly. Increasing the number of judges in the Supreme Court is only a popular measure with no real meaning. If one looks at the number of petitions filed in the Supreme Court of Pakistan over the last decade or so, there has not been any substantial increase in their numbers, which could justify an increase in the number of judges.

The pace of the disposition of cases has also been very good, comparable to similar courts. If the contention is that more judges will mean a larger disposition of cases, it could also easily mean more review petitions and more confusion in terms of precedence. In fact, the experience of India clearly tells us that having more judges means that at times there are contradictory judgments and a resultant confusion in the subordinate judiciary on precedence, among other problems. While there are several reasons for the problems in our judicial system, two are key, and unless they are tackled, all reform will be piecemeal, ad hoc, and will simply miss the mark.

First, there has to be a realisation that the Supreme Court is not bound to take up each and every case filed before it. Also, it does not need to act like a trial court. As compared to other similar courts, the Supreme Court of Pakistan takes up a much larger percentage of cases, which obviously increases its workload. As compared to the US Supreme Court, which take up just about one per cent of cases filed before it and hears several similar petitions at once, its Pakistani counterpart often accepts and hears appeals in larger numbers and separately.



The second problem facing our judicial system relates to the lower judiciary. All cases emanate from the lower judiciary and all appeals are filed on cases filed therein. Therefore, before everything else, it is the lower judiciary which needs to be reformed. If the judges at the trial court level are better educated, better trained and carry out the trial in a more professional manner, not only will appeals to the higher courts decrease, but also the need to repeat the trial at the higher level. It is mainly the lack of capacity at the lower court levels, which leads to a higher workload and a repeat of trials at the higher level. However, working to reform the lower judiciary is considered working the mud by most and so the focus is solely on the higher judiciary and on cosmetic changes. Until and unless concrete reforms are initiated at the lower courts level, the dream of the senators to achieve ‘speedy justice’ will always remain an allusion.

Published in The Express Tribune, February 21^st, 2016.

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