Is bigger always better? Perhaps not when it comes to the Supreme Court. A report by the Senate Committee of Whole (a committee meeting of the entire Senate) in December proposed increasing the size of the Pakistani Supreme Court from 17 judges (including the chief justice) to 27. While the report was focused on finding ways to further "inexpensive and speedy justice", expanding the court may actually have the opposite effect, making it more likely that litigants will have to engage in an expensive and time-consuming trip to the Supreme Court.

The Senate Committee justified its recommendation to expand the court in part by noting that the number of judges on the court has not increased since 1997 even as the country has become more populous. However, despite the increase in population, backlog at the Supreme Court has not increased markedly. In 2014, the last year that the Supreme Court has published data, the court had a pendency of about 23,000 matters with about 18,500 matters being instituted during the year. This may sound like a monumental number of cases, but the court’s current workload is not anomalous historically. In 2004, the court had a pendency of 28,000 matters with 17,500 matters being instituted that year. Increasing the number of judges on the court by ten to deal with a workload that hasn’t changed much in a decade seems dramatic, even if one believes that a larger court could more efficiently deal with more matters.

There is good reason to believe, though, that increasing the size of the Supreme Court will not be effective at tackling its backlog problem. Instead, it is likely to exacerbate it. An apex court is not meant to hear every case in the country. Its power lies in hearing a smaller sub-set of representational cases. Through its judgments in these representational cases, the court sets precedent that binds the courts below it in similar matters. By clarifying the law with well-reasoned and accessible judgments a Supreme Court restricts the number of cases that it needs to decide in the future because subordinate courts, following the Supreme Court’s directions, resolve them instead.

Increasing the number of judges and benches of the Supreme Court will likely confuse precedent, making it more difficult for judges in the High Courts and district courts to interpret the law, meaning many more cases will be appealed to the Supreme Court than is desirable for a court of last resort. It will also decrease the likelihood that parties can settle their cases out of court on their own because of uncertain ties about what the law of the land actually is.

Already there are complaints of contradictory orders between benches of the Supreme Court and growing criticism of the practice of larger benches overturning or undercutting even very recent judgments on the pretext of review. The erstwhile Chief Justice Iftikhar Chaudhry underscored this problem in the Nadeem Ahmed case (2009), noting the palpably unconstitutional review judgment in Tika Iqbal Khan (2008) that purported to validate Musharraf’s second coup by removing the limits on the General’s powers as laid down earlier in Zafar Ali Shah (2000) through a larger bench (13 as opposed to the original 12). This jurisprudential jugglery through manipulation of the power to constitute Supreme Court benches is by no means a new phenomenon in Pakistan’s judicial politics.

The court’s mega-political judgments are replete with instances of reversals and contradictions, owing largely to extra-constitutional regime change. But what is worrying about the current trend in the inter-bench competition over finality of precedent is that it appears to extend across a wider spectrum of Supreme Court cases, whether they concern the ban on the hunting of the endangered Houbara Bustard or the legality of certain pensionary benefits for retired judges.

In the Houbara Bustard case, where the unanimous decision of a three-judge bench was reheard by five judges this month, Justice Qazi Faez Isa’s forceful dissent put the point across plainly: "a larger Bench hearing a review would be effectively sitting as a court of appeal".

Disagreement among benches of the Supreme Court incentivises parties to appeal, even when they think they have a weak case. After all, they might luck out and appear before a bench favourable to their position. Why not then appeal and extend the litigation? And given that even a Supreme Court judgment may not be dispositive, why not put in a petition for review? A larger Supreme Court only makes this kind of interminable calculus more viable and attractive.

The Senate committee also recommended that the Supreme Court consider amending the rules to allow for appeal against its own judgments passed in its original jurisdiction under article 184(3) of the Constitution. Article 184(3) empowers the Supreme Court to directly hear cases of public importance that relate to the enforcement of Fundamental Rights. If this recommendation is adopted it will mean that some of the Supreme Court’s own judgments will be appealable, presumably to a different and larger bench.

The Senate committee additionally recommended abolishing intra-court appeals in the High Courts, i.e. appeals between High Court benches before cases become appealable to the Supreme Court. In the words of present Chief Justice Jamali, if intra-court appeals in the High Court are abolished, "the matter would directly land in the top court and overburden it, while forcing the litigants to come to Islamabad". The cumulative effect of these proposed changes would likely be a sudden spike in appeals and a further fragmentation of precedent as more judges, sitting on more benches, would need to decide more cases.

To understand the effect of expanding an apex court, Pakistan does not have to look further than the cautionary experience of India. Throughout its history, the Indian Supreme Court has periodically been expanded to attempt to meet its ever-growing workload. From an original 8 judges at Independence, the Indian Supreme Court now has 31 judges, mostly sitting in benches of two. However, perhaps predictably, this has led to widespread complaints of contradictory precedent from different benches of the court. This, in turn, has led to both more appeals and these appeals being heard by the Supreme Court.

As commentators like Pratap Bhanu Mehta and Chintan Chandrachud have observed, Supreme Court decisions in India have taken on an ad hoc character. While such specific tailoring of the court’s decisions may sometimes respond to the needs of a particular case, the cacophony of voices created by different judges and panels of the court can set back the larger cause of justice by failing to lay out clear rules of the game. Instead of more judges helping bring order to the judiciary’s docket, a larger court has often created more confusion and, partly as a result, backlog in the Indian Supreme Court has continued to rise.

Increasing the size of an apex court can also unintentionally disrupt the relationship of power between judges. In India, as in Pakistan, it is the chief justice who decides which judges will hear specific matters, and in many cases, how many judges will sit on a bench. Likely partly as a result, the chief justice’s views in significant matters often win out. One study of Constitution benches in India (i.e. benches with five or more judges) found that in the first decade of the 2000s the chief justice was four times less likely to be in dissent than other judges.

In Pakistan, though there is no equivalent study on the effects of the powers of the chief justice on the constitution of benches, there is some empirical data -- based on one of the co-author’s analysis of all the reported Pakistani Supreme Court cases under the court’s original jurisdiction over a period of a quarter century (1988 to 2013) -- that suggests parallels. One thing that is evident from this data is that the incidence of dissent is generally minimal in benches of five or more judges (which comprise roughly 55 benches in a dataset of over 200 cases), whether including or excluding the chief justice. However, the chief justice -- of whom there have been eleven during this period -- was represented in well over 80 per cent of these benches.

Moreover, the chief justice has never been in dissent, except in three cases, each of which precipitated a major crisis, leading to the removal or expulsion of the chief justice. Thus, it appears that not only is the chief justice likely to preside over larger benches, he/she is highly unlikely to be in dissent, and his/her presence on a bench is very likely to lead to a clear majority, if not unanimous, judgment.

Since 2013, somewhat more diversity is perceptible in major constitutional cases, but this seems more a consequence of the very quick succession of chief justices post Chief Justice Chaudhry than a weakening of the top judge’s discretionary authority. On balance, a larger Supreme Court will likely provide greater leverage to the chief justice in constituting benches and steering decisions, giving the chief justice’s views more significance in a system in which judges’ views are typically thought of as carrying equal weight.

Just as a larger court strengthens the chief justice’s hand in setting benches, it arguably undercuts his or her ability, as well as that of the court more generally, to institute needed reforms, such as improving courtroom management. In India, reform projects of the court, and the judicial system as a whole, are frequently stalled because it is difficult to create consensus among a large and fractious Supreme Court body of 31 judges.

Some lawyers and judges in Pakistan, including the incumbent chief justice, may favour expansion of the Supreme Court, and their views should be taken as both serious and sincere. But expansion is arguably also in their self-interest, helping generate more appeals for high paid lawyers and more posts that can be filled by elevating High Court judges.

That said, the executive committee of the Pakistan Bar Council -- the highest elected body, and regulatory authority, of lawyers -- expressed its opposition to the proposed expansion in a resolution last week. The resolution argued that, much more so than the Supreme Court, it was the lower courts and High Courts that urgently required more, and better quality, judges. According to the resolution, the aggregate number of pending cases in the five High Courts at the end of 2014 stood at over 280,000 compared to less than one-tenth of that pendency at the Supreme Court for the same year.

One might still argue that a larger Supreme Court is not without potential benefits for the judicial system. It might, for instance, be able to take on more public interest litigation, which could increase its power and independence. Having a Supreme Court whose jurisprudence is more indeterminate may also increase the likelihood that parties from a diverse range of views may buy into the legitimacy of the court because they know even if the court rules against their position one day, a different panel, with a different group of judges, may favour them on another day.

However, the costs are clearly large. Pakistan may decide to increase the size of its Supreme Court, but it should do so with eyes wide open, realising that it will likely create more new problems than it solves. A larger apex court undercuts precedent (thereby helping create more appeal and backlog), empowers the chief justice above other judges, and makes it more difficult for the entire court to reach consensus about needed reforms.

What citizens need is justice at lower tiers of the judicial system, not drawn-out appeal and review processes that require expensive lawyers at the level of the Supreme Court. An alternative path of reform would see the Pakistani Supreme Court hear fewer cases of high legal import, while recognising the lower courts as the epicentre of justice delivery. The better answer lies in strengthening its leadership role by ensuring that it lays down clear jurisprudence and that its rulings are followed by a capable and well-staffed judicial system.

Nicholas Robinson is a Lecturer and Robina Fellow at Yale Law School. Maryam S. Khan is a Visiting Research Fellow at the Institute of Development & Economic Alternatives (IDEAS), a think-tank based in Lahore, Pakistan.