Misplaced priorities

On August 28, 2024, former CJP Qazi Faez Isa asked the chief justices of our provincial high courts: if you have more than five vacant seats, get to filling them.

A simple directive, one might think – albeit perhaps a bit misplaced. But as I looked around back then, I couldn’t help but wonder why, with far more than five vacancies across the board, the Judicial Commission seemed to be waiting for a formal invitation to a party no one had planned. Fast forward to today, and I finally understand that we were working on something altogether different.

In their latest stroke of genius, our honourable representatives have increased the number of judges in the Supreme Court, effectively doubling the headcount. The fire in their bellies has not yet subsided with the 26th Amendment – which, mind you, was already a headache. They have now made space for 17 new Supreme Court justices – as if that’s precisely what our justice system was missing. So, seven judges are now tied up on a sparkling new constitutional bench, leaving the remaining eight to wrestle with everyday cases like murder appeals and land disputes. But rest assured, the promised reinforcements are coming – eventually – at a cost.

Now, for those keeping score, we’re talking about 17 new Supreme Court judges plus two current vacancies, for a grand total of 19. Unless we’re heading straight for direct appointments, most of these will come from provincial high courts – likely four from each, with Islamabad adding one or two. So while we’re busy adding judges to the Supreme Court, we’re bleeding them from where they’re arguably needed most.

Consider the statistics. The Lahore High Court currently has 24 vacant seats, Sindh 12, Peshawar 16, and Balochistan 4. With these upcoming elevations, Lahore could be down by 28 judges, Sindh by 16, Peshawar by 20, and Balochistan by 8. Effectively post elevations, Lahore would be functioning at half capacity while Peshawar at one-third.

The high courts, struggling under the weight of pending cases – over 150,000 in Lahore, close to 100,000 in Sindh, and about 40,000 in Peshawar – are not exactly operating at peak efficiency. Yet we have decided to move judges up to the Supreme Court as a solution to the backlog. Somewhere, irony is chuckling.

And then there’s the matter of priorities. If the solution to our judicial bottleneck is appointing more judges, why not start by filling the obvious gaps in the high courts? Instead, our first fix was the 26th Amendment, a grand exercise in judicial reform that’s given us anything but results.

Take, for instance, the recently increased seats at the Peshawar High Court. This was notified in September. And the appointments made since then? Nada. Restructuring the process of judicial appointments without addressing the vacancies themselves is like rearranging deck chairs on the Titanic. The iceberg is right there, yet our legislators decided the chairs need alignment.

Some might argue that adding judges to the Supreme Court is an important step forward, a chance to modernise, to speed up justice at the highest level. But where is that urgency when it comes to the overworked high courts, where people wait years – sometimes decades – for their cases to be heard? If the goal is justice, our lawmakers seem to have a very particular audience in mind, one that doesn’t include the average citizen.

Before we delve further into the implications of recent appointments, let’s take a moment to ask a crucial question: why do we even have such extensive vacancies in our high courts? If the issue were simply a lack of qualified candidates, that would be one thing. But somehow, despite these shortages, we’re still stripping the high courts of their few remaining judges to meet new Supreme Court quotas. It’s a curious situation – an elaborate charade that suggests we’re tackling judicial backlogs while systematically emptying the very courts that handle the overwhelming bulk of our cases.

If there’s a shortage of qualified individuals, why aren’t we addressing that? And if the problem lies in the appointment process itself, why not prioritise reforms that ensure vacancies are promptly filled?

Instead, we’re left with courts operating below capacity, overburdened and under-resourced, while the Supreme Court swells in size. This setup only heightens the difficulties for citizens seeking justice, who now face both a shortage of judges in the high courts and an increasingly inaccessible Supreme Court. It begs the question: what good is an expanded Supreme Court bench if there are barely functioning high courts to support it?

The logical solution would be reform that guarantees high court vacancies are filled without delay. This could include training and promoting qualified judges from the district judiciary and building a clear and stable pathway for their elevation to the high courts.

Such a process wouldn’t just keep seats filled; it would create a robust pipeline of judges with experience, legal knowledge, and practical grounding. And that, one would think, should be parliament’s priority – not sprinkling more Supreme Court seats here and there, as if that alone would make justice more accessible. If we’re after real progress, then let’s commit to a judiciary that’s not chronically understaffed but equipped to meet public needs at every level.

But instead of these practical reforms, what we’ve been handed is an expansion of the Supreme Court – a cosmetic change with little regard for the actual crises in our justice system. It’s like putting up Christmas lights in the summer, with no snowfall in sight. A bright, decorative addition, yes, but ultimately out of place.

In the end, this piece isn’t meant to catalogue every flaw in these recent legislative experiments. They’re plentiful and glaring, yes, but what stands out most is the astonishing disconnect between the needs of our justice system and the solutions offered. We have opted to elevate judges rather than empower the courts that serve the public. Misplaced priorities, indeed – unless, of course, justice was never the priority to begin with.

The writer is a lawyer.