READING the daily cause list published on the Sindh High Court (SHC) website makes one long for the swift certainty of the Baloch jirga. On Aug 23, 2011, Nishat Mustaq’s civil suit was fixed for arguments.

One hopes it was heard and decided because it was filed back in 1980. Unlikely though. The judge assigned to hear it had four hours of court-time and 68 other cases listed before him that day.

The same day, Hamdard Laboratories had a constitutional petition fixed for hearing some 25 years after institution. Even more pitiful was the case of Muhammad Shaukat who has spent the last nine years in jail waiting for his appeal against conviction to be heard. But both cases were fixed before a division bench that had another 83 cases to deal with.

The ugly fact is that our justice system — as exemplified by the SHC — has collapsed. It has become irrelevant as a means of dispute resolution due to its inability to provide solutions within a remotely acceptable time-frame. Litigants are compelled to seek speedier, albeit cruder, forms of dispute resolution from non-state actors ranging from business and societal leaders performing mediations and arbitrations to jirgas and panchayats and, most corrosively of all, militant political groups.

Why are our courts — and in particular, the SHC — so inefficient?     Some contend it is the time wasted on high-profile political cases that prevents courts from devoting their attention to ordinary cases. Others attribute the delay and backlog to the appointment of inefficient judges. Still others blame unprepared advocates who have created a culture of adjournment-seeking. While there is some (varying) degree of truth in all these complaints, the latter tend to focus on the symptoms of the disease as opposed to the cause.

By the end of June 2011 there were 13,712 civil cases; 7,180 civil appeals; 6,606 constitutional petitions and 4,266 criminal matters pending before the SHC. A total of 18 judges were expected to manage this load of 31,764 cases.

It gets worse. Many types of appeals and petitions can only be heard by a division bench comprising two judges sitting together. The current court roster includes four division benches. Thus, while there are 18 judges, there are only 14 available benches. This makes an average of 2,300 cases per bench.

But even this figure is misleading. Around 40 per cent of the cases pending before the high court are civil suits and have three distinct stages that come up before the court at different times: the first where miscellaneous applications are argued and decided, the second where evidence is recorded and the third where final arguments are heard and decided. As such, every civil suit — while counted only once — is worth three of any petition or appeal in terms of time-consumption. And that is just the backlog.

In June 2011, a total of 1,133 fresh cases were instituted. Perusal of the data for previous months shows this figure to be well within the average monthly range.

Facing an unmanageable deluge of cases, the clerks in the court office react, counter-productively, by assigning hundreds of cases to each judge on a daily basis. Every morning, the judge enters the court knowing that he will not be able to hear more than 10 per cent of the cases. So he is happy to adjourn cases with or without excuse.

Likewise, given the 90 per cent chance of adjournment, why should an advocate waste hours preparing for the hearing? In the unlikely event of both judge and opposing counsel being ready to proceed with a case, all he needs to do is ask for more time to prepare the case — a perfectly adequate ground for adjournment. This also explains the reason why high-profile cases of political or social import consume a disproportionate portion of court time. If you could hear only one case in ten, wouldn’t you pick the one with the most human impact?

This self-perpetuating cycle of adjournments and culture of delays is the result of the absurd mismatch between the number of cases and the number of judges. It is the most serious problem facing the SHC today. However, it needs to be recognised and prioritised as such by the bar and the bench.

Judicial delays can be considerably reduced through the implementation of a costs regime to discourage frivolous litigation, modernisation of archaic civil and criminal procedures and adoption of more sophisticated case management and fixation mechanisms; however, the development and application of such initiatives need time, effort and, in some cases, legislative intervention.

Moreover, while necessary, such measures are incapable of fully compensating — by themselves — for the absurd judge-to-cases ratio. The law sanctions 40 judges for the SHC. In the circumstances, the presence of only 18 judges is baffling. The last judicial appointments were made more than 18 months ago. While we now hear that moves are under way for appointing 10 more judges, the process of judicial appointments is still characterised by a complete lack of urgency, which — given the unmanageable burden of cases — is inexplicable.

And why only 10 judges against 22 vacancies? Simply enhancing the number of judges to the sanctioned strength of 40 would improve the judge-to-cases ratio in the SHC by more than 100 per cent. Logically, that would halve the time taken to decide a case.

It is sometimes argued there are not enough judicial candidates of sufficient calibre. The argument is fallacious. Firstly, the confirmation process whereby judicial appointees are only confirmed on the bench after a trial period of one or two years is a sufficient mechanism to weed out unsuitable persons. Secondly, the standard requisite for appointment to the high court can only be determined in reference to the prevailing standards of competence within the bar and among district judges. Can the SHC be left half-empty and cases left to pile up indefinitely while we wait for the miraculous reappearance of a Cornelius or a Hamood-ur-Rehman?

The law requires the chief justice of the concerned high court to initiate nominations against each vacancy in that high court and, thereafter, for the Chief Justice of Pakistan to convene a meeting of the Judicial Commission. Once the Judicial Commission approves a nomination, the Parliamentary Committee has 14 days in which to confirm or reject the nominee failing which the nomination is deemed to be confirmed.

Now that the legal controversies about the methodology of appointment of judges and the inter-se powers of the Judicial Commission and the Parliamentary Committee are finally settled, any continued delays in appointment of judges can only be attributed to the inactivity of the concerned chief justice/s.

Back in 1996, in the case of Al Jehad Trust v. Federation of Pakistan, the Supreme Court held that vacancies in the superior judiciary ought to be filled within 30 days. More recently, in the case of Munir Hussain Bhatti v. Federation of Pakistan, the SC affirmed that the guidelines and principles laid down in the Al Jehad case continue to remain applicable in the present day despite the passage of the Eighteenth and Nineteenth Amendments to the constitution and the resultant changes to the method of appointing judges. The learned chief justices and other judges forming part of the Judicial Commission would do well to recall and implement their own judicial pronouncements.

The writer is a practising barrister