AFTER a flurry of activity a couple of months ago, geared towards filling the vacancies in the apex court — an exercise that went awry in an embarrassingly public manner — a curious inertia appears to have descended on that front. A move towards reviving the process has just been made, but the ball is now in Chief Justice Umar Ata Bandial’s court. A few days ago, the senior puisne judge of the Supreme Court, Justice Qazi Faez Isa, wrote a letter to the chief justice requesting him to call a meeting of the Judicial Commission of Pakistan to fill the vacancies. In his missive, the judge expressed concerns that despite a pendency of over 50,000 cases, the apex court bench — which at present included the chief justice and 16 judges — was working at considerably less than full strength. The five vacancies, he said, amounted to 726 lost days and added that the steadily mounting backlog was unlikely to ever be cleared if this issue was not rectified, rendering the court dysfunctional. Justice Isa also pointed to the national resources spent on running the institution which has about 700 staff on its payroll. “Therefore, it is not understandable why the Supreme Court is working at a significant 30pc reduced capacity.”

There can scarcely be any justification for the continued and inexplicable delay in these critical appointments. But the growing backlog of cases in the Supreme Court is only the immediate consequence; at stake is something far bigger. The country’s criminal justice system already does not inspire confidence, but when there is apparent disharmony among the topmost judges, the ripples travel downward and weaken the entire edifice even further. While the friction on the bench has long been brewing, it was the process of selecting judges for elevation to the apex court — whether seniority or merit should be the deciding factor, aside from differences over the chief justice’s shortlisted candidates — that laid it bare. That this happened at a time when several politically sensitive cases were being decided by the apex court raised more questions in the public’s mind. Bar associations weighed in, as did other senior judges about what they perceived as troubling patterns. Justice Maqbool Baqar in his farewell speech said the exclusion of independent-minded judges from hearings of sensitive cases has an adverse effect on the impartiality and integrity of the judiciary and “fosters feelings of estrangement” amongst its members.

It bears recalling that a day before being sworn in as the country’s top judge, Justice Bandial had said that diversity of opinion on the bench “adds richness to our understanding”. On the same occasion, he had also identified the massive backlog of cases and the ‘scandalisation’ of judges as the two main challenges before the judiciary. Judging from what has been transpiring of late, the apex court is not doing enough to address either of these issues.

Published in Dawn, October 3rd, 2022