Unwise actions of government have pitched it against the judiciary. Bulldozing of Anti-terrorism Act through the parliament despite visible concern of judiciary and then downsizing of Supreme Court Judges from 17 to 12 have created a confrontation like situation between the two pillars of state. Executive-Judiciary difference intensified when Chief Justice recommended 5 high court judges and Chief Justices for elevation to Supreme Court to fill up the existing vacancies. The government, instead of acceding to the recommendations issued a Notification curtailing the Supreme Court strength by 5. President Farooq Ahmed Khan Leghari reportedly clarified his position about the issuance of curtailment of judges notification by stating that he was assured that the summary of the notification had been prepared with the consultation of the Chief Justice.
Supreme Court Bar Association moved a petition against the government Notification and Chief Justice suspended the Presidential Order of curtailment and constituted a three member bench comprising Chief Justice Sajjad All Shah, Justice Saeeduzaman Siddiqui and Justice Ejaz Nisar Shaikh to adjudicate the petition. Later on the government had withdrawn notification, rendering the Bar's petition infructuous. After the withdrawal of judges curtailment notification it was rightly presumed that government did not want confrontation with judiciary and meant business. It was considered a wise step of government that was widely appreciated by all and sundry.
But official signals that are now being received suggest that government appears hell bent to reduce the strength of apex court judges. Prime Minister Muhammad Nawaz Sharif clearly stated that the judges case would be taken to parliament and which under constitution is the supreme authority to determine the number of judges in accordance with Articles 174 and 192 of the consolidations. According to press reports the two houses of the parliament will be convened soon and government will move a bill for determining the strength of Supreme Court judges. Legal bodies are not taking Prime Minister's statement in good taste. An executive member of Pakistan Bar Council and Chairman Pakistan Bar Council's Human Right Committee is of the view that supremacy of parliament does not mean the subjugation of the judiciary and the independence of judiciary is as much a constitutional requirement as the supremacy of parliament. Similar are the views of Vice Chairman Punjab Bar Council. Legal experts believe that while determining the strength of judges in the Parliament government will have to take into account the quantum of litigation before the apex court.
Statistics available reveal that excluding the Federal Shariat Court, the superior courts have 150,000 cases pending before them. The total sanctioned strength of the superior judiciary is 116, against which 92 judges are working. The Supreme Court is working with 12 judges against its sanctioned strength of 17, the Sindh High Court (SHC) 19 judges against a strength of 28, and the Peshawar High Court (PHC) 12 judges against a strength of 15. Only the Balochistan High Court (BHC) has its full strength of six judges. The report of the Pakistan Law Commission pointed out that 8,031 cases are pending with the Supreme Court, 75,768 with the Lahore Hight Court (LHC), 626,699 with the SHC, 11,497 with the PHC, and 665 with the BHC. It is quite unusual that government on one hand has expanded cabinet members from 7 to around 79 (Ministers 27, Ministers of State 28, and appointees with status of Minister 24) in the name of good governance but on the other intends to downsize judiciary that would surely block the way of speedy justice.
March 20, 1996 verdict of Supreme Court in the case of appointment of judges clearly lays down that a vacancy in the superior judiciary is to be filled with 30 days of Chief Justice's recommendation. But the inexplicable delay on the part of government to implement the recommendation of Chief Justice is violative of the constitution that is being criticized seriously by legal experts. …