Supreme stakes: the extra judges debate

A bill is brought before the Senate by a private member. Increase the cap on Supreme Court judges, it demands. Nay, comes the reply. And as the opposition leader gives his speech, saying clever things here and there, “court stacking” or “packing” – for puritans – is what he calls the demand.

But that’s the thing with big words – their usage without context makes for an exercise in fanciful masquerade; the core is still left untouched. We address the word and see where it leads us.

A scholarly definition of court packing reads: “any change of the composition of the existing court, which is irregular, actively driven(non-random), and creates a new majority or restricts the old one.”

Two things: first, the definition stresses the making/ breaking of majorities. This majority/ minority debate relishes in contexts where judges are and have been divided along ideological lines. In the US, if you are a Republican nominee, you are expected to be ingrained in Republican tradition – for the dominating Senate would be happy with nothing less than its own make and variant of a judge’s mind.

This approach has its backers and detractors but its relevance for us lies exactly in its lack of relevance. With respect, we do not have ideological judges. In fact, putting our political parties in neatly ordained ideology baskets will be a hair-splitting exercise leading to more confusion as more names are thrown in.

There may still be the answer that in a Pakistan that does not care about ideologies, judges may simply pander to their political masters: to hell with the ideologies of both. But this is where the definition’s second limb kicks in: a purpose to be served. The purpose however is not conjectural; the results it yields must be ‘immediate’ and the person engaging in packing should be the beneficiary.

Put simply, we need something akin to President Menem’s: “Why should I be the only person who won’t appoint his supreme court” to call anything court packing.

This marks the point of contextual departure. Our judicial appointments are not politically led. Per Article 175(A), there is a committee principally of judges (Judicial Commission) where the name of a nominee is raised and debated; political leanings (at least, official ones) come only at the time of ratifying the nominee (Parliamentary Committee), weak as the powers of this committee are.

Skip the formals, comes the reply. The chief justice initiates the nomination and then come allegations regarding him. The attorney general and law minister are government men, it is said; the chief justice may nominate a former judge with similar leanings. The count stops at four; the majority in the commission still stands the other way: four senior judges and a bar representative.

And you and I may argue ad infinitum; but the fact remains that despite allegations, our judiciary which has passed through the rigours of Article 175(A) has not served partisan interests (mostly). Our politicians champion decisions, and not individual judges (mostly) – for was it not the otherwise politicized Bandial court that called the circumvention of the vote of no-confidence what it was: a circumvention? Even if an individual judge is willing to pander, it is certain that s/he will end up in the minority since there (mostly) will be a conscientious majority ruling the other way.

To return to the pointed fingers close by, increasing the number of judges from 17 to 21 or 19 to 23 (if you add ad-hoc judges) does not carry immediate political ramifications. While one should always steer clear of attributing malice to parliament, the reserved seats order can be discussed within the confines of the Senate Hansard. The judgment is a byproduct, not of an eight-member majority, but a 13-member court. Appealing would require a larger bench – 14 judges – and those who have not heard the matter before, which would make the golden number 27.

So, the numbers do not add up.

The opposition minister was portentously throwing in the number seven, even though the presenter and all the other speakers said the increase was six. But I will say no more on numbers so, take a fresh breath and hear this:

If the government, even at all, wanted to undo the judgment, it could simply have more ad-hoc judges installed. Even if any malignant government decides to subject some judgments to appeal, it can simply do so by having a small bench hear the matter. But, wait a minute, a judicial committee now decides bench formation and so a weaker judicial-patsy argument can now be made up and we can keep going on in circles.

But this academic discussion should stop here; apprehensions if they are not able to point directly to spectres should be quelled. So, we approach the bill’s content with a fresh mind.

Why is there an argument for increasing the number of Supreme Court judges? We address this by taking on its detractors.

You should start with the lower judiciary; this argument pits the two positions against each other – and they are not mutually exclusive. More backlog may lie in the lower judiciary but reforming the Supreme Court does not come as a cost to it, and vice versa. Even otherwise, the 50,000 or 60,000 that is being thrown around is the actual Supreme Court backlog.

Increasing the number of Supreme Court judges would increase litigation in an already litigiously minded country, runs the second argument. One could also say the same for the lower judiciary; what is to stop more people from taking their cases before more lower court judges? This will show us why this argument is misplaced. Clearing the backlog would require more judges; pacifying a litigious society on the other hand will require a mindset or route shift to ADR and other means of amicable resolution.

Then a third one: the Supreme Court should start doing this and that in the future. For sure it should but talks of the future cannot be blinded by the past; a backlog exists, and it demands clearance. While the Supreme Court may do well to not adopt future policies that add to it, these arguments help little in addressing the original contention.

The bill now lies before the Senate Law and Justice Committee. If the opposition requires that the time for appealing the reserved seats judgment be allowed to pass, or requests that rather than a maximum number be increased, more ad-hoc judges be appointed, or reaches a number in agreement (two at present), the government should facilitate these demands if its intentions are as pure as it projects them to be.

The writer is a law student

at the Lahore University of Management Sciences (LUMS).