Complete address by Justice Asif Saeed Khosa on January 17, 2019 at the full court reference for Chief Justice Mian Saqib Nisar shared by the Supreme Court of Pakistan
Honourable Chief Justice and my brother Judges, Attorney-General for Pakistan, Vice-Chairman, Pakistan Bar Council, President, Supreme Court Bar Association, Members of the Bar, Distinguished guests, Ladies and gentlemen.
The Honourable Chief Justice of Pakistan Mian Saqib Nisar and I have been conjoined judicial twins for the last about twenty years and eight months.
In the medical jargon conjoined twins are twins whose bodies are connected to each other and it is through a very complicated surgical intervention that such twins may be separated. Mian Sahib and I were elevated to the Bench of the Lahore High Court together on May 21, 1998, we were deposed together on November 03, 2007, we were restored together on August 30, 2008 and we were elevated to the Bench of this Court together on February 18, 2010. In the High Court as well as in this Court our seniority has been next to each other’s and throughout this period of more than two decades we have sat on seats in the tea rooms of the Courts placed next to each other.
During all this while we have been physically together and I may, therefore, not be wrong in saying that we have been conjoined judicial twins.
Alas, by the stroke of midnight tonight these twins shall stand separated physically not through any surgical intervention but through a constitutional intervention and I must hasten to add that the loss through such separation shall be entirely mine. A sincere friend, a trusted confidant, a wise counsel and an accomplished and erudite Judge like Mian Sahib shall no longer be available on the Bench to help, advise and guide me.
The speakers before me have already spoken about how good a Judge Mian Sahib has been.
I can vouch for that and may add that I have served with more than a hundred Judges of the Lahore High Court and of this Court so far and I have found Mian Sahib’s mastery over civil, tax, revenue, service and constitutional law enviable and difficult to match. I have also served with a number of Chief Justices of the Lahore High Court and of this Court and I have no hesitation in acknowledging that Mian Sahib will go down in history as one of those Chief Justices who steered the Court quite ably in testing times.
The tenure of Mian Sahib as the Chief Justice of Pakistan fell in times which were turbulent, to say the least. The saga of the Panama Papers, the issues of constitutional disqualification of political leaders, the events leading to holding of the general elections in the country and the issues arising out of the national effort against terrorism, extremism, corruption and poor governance posed huge challenges but Mian Sahib was able to wade through all those troubled waters and to steer the ship of this Court to safe and still waters.
Despite his preoccupation with such larger national issues he also devoted his attention to many issues of public importance regarding the citizens’ fundamental rights. His keen interest in provision of clean drinking water in cities, removal of encroachments upon the State land, adequate medical facilities in hospitals, proper management of medical and legal education, supply of pure milk, recovery of written-off bank loans, proper investigation of mega corruption scams, population welfare, building of dams and water reservoirs, retirement of national debt and in some other areas of public importance has sensitised the governments and the populace at large on such vital issues. His efforts made towards police reforms are also likely to lead to an upturn in administration of justice.
Mian Sahib, your contributions in all these areas have left a mark and we shall always remember you with admiration and reverence.
Ladies and gentlemen,
As is customary, let us now have a peep into the near future.
With an experience of over two decades as a Judge and with the support of my colleagues also having vast experience I would, if Almighty Allah so wills, like to avail every moment of my remaining time on the Bench to attend to the causes that contribute towards delay in disposition of cases at all levels of the judicial hierarchy.
With an untiring effort of my colleagues having expertise on the criminal side we have already succeeded in deciding thousands of criminal cases and in wiping out the backlog of such cases in this Court and we are now left with only a few hundred pending criminal cases which can be termed as current cases. Such a target and success have seldom been achieved in any Court before and this has been possible in this Court only because the cause-list of the day was kept in control and there was a uniform policy of not entertaining or discouraging applications for adjournment. We understand that for a legal practitioner there cannot be an obligation or engagement more pressing or urgent than to appear before the Court when his or her case is fixed before the Court for hearing. We on the Bench greatly appreciate the cooperation extended to us by the learned counsel in this respect. An effort shall be made to extend and follow the same policy in all other categories of cases as well and we expect the learned counsel to extend similar cooperation to us even in those cases.
For facilitation of the learned counsel and in order to minimise the chances of adjournments modern technology shall be utilized and a possibility shall be explored regarding establishing video links between the Branch Registries of this Court and the Principal Seat through which the learned counsel may address arguments in the courtrooms of the Branch Registries and appropriate Benches of this Court may hear those arguments at the Principal Seat in real time and decide cases. Such innovation may reduce inconvenience and huge expense on the part of all concerned besides diminishing delays caused by non-availability of Benches at the Branch Registries of the Court.
The model courts set up in some of the Districts of the Punjab upon my initiative and under the patronage of Mian Sahib and supervision of Justice Syed Mansoor Ali Shah when his lordship was the Chief Justice of the Lahore High Court conducted and concluded trials of criminal as well as civil cases in three to four days rather than three to four years as was the case in the yesteryears.
With the approval and cooperation of the High Courts an all-out effort shall be made to expand the said project to the entire country. Even the steps taken towards judicially conducted arbitral interventions during criminal, civil and family litigation have yielded very positive results in the said Province and expansion of the said project shall also be explored seriously.
Mian Sahib had once observed publically that he is left with only two ambitions in life, i.e. to build dams and to retire the national debt. I would also like to build some dams, a dam against undue and unnecessary delays in judicial determination of cases, a dam against frivolous litigation and a dam against fake witnesses and false testimonies and would also try to retire a debt, the debt of pending cases which must be decided at the earliest possible.
I can anticipate that some of the steps to be taken in these areas may face some resistance or reluctance from those who are used to the old ways but I am sure that the results to be achieved will convince all concerned of utility and usefulness of such steps. I would like to assure you that all such steps will be taken in the best interests of the institution of judiciary and that in all manner of circumstances we shall like and prefer to be correct rather than erratic and proper rather than popular.
There are about 1.9 million cases pending in the country before all the courts put together and to handle such a huge number of cases there are only about 3000 Judges and Magistrates available from top to bottom.
Successive governments have failed to suitably increase the number of Judges and Magistrates on account of financial constraints.
3000 Judges and Magistrates cannot handle 1.9 million cases even if they work for 36 hours a day.
It is, therefore, time to take some big and hard decisions. It is also time to introduce some structural and systemic changes so as to minimize litigation, eliminate unnecessary delays and rationalize the workload. Time has also come when the judicial system as a whole needs to be redesigned or restructured and made simple and effective.
The four-tier judicial hierarchy in the country ought to be replaced with a three-tier system wherein there should be the District Judiciary as the trial court for all civil and criminal cases, the Provincial High Courts as the courts of appeal in all cases and the Supreme Court as the last resort.
All questions of fact must attain finality at the level of the High Court and the Supreme Court ought to attend only to interpretation of the Constitution and laws.
All the Special Courts ought to be abolished and there ought to be one hierarchy of courts with specified judges of the District Judiciary attending to cases under the special laws like drugs, banking, narcotics, corruption, terrorism, labour, intellectual property and consumer protection, etc. with appeals in such cases going to the High Courts. The special courts created under a Federal statute may be financed and administered by the Federal Government but they may fit into the same hierarchy. Having only one judicial hierarchy may eliminate jurisdictional disputes as well as the delay caused in resolving such disputes.
Military Courts trying civilians in criminal cases are universally perceived as an aberration propelled by necessity and expediency. If the legislature, in its own wisdom, decides to continue with such courts for the time being then it may consider providing for appeals from their decisions to lie before a High Court so as to adjust such courts in the normal judicial hierarchy and to ensure that expediency does not trump justice.
The already blurred distinction between Regular First Appeal, Regular Second Appeal, Revision petition and First Appeal against Order, etc. before the High Court ought to be done away with and in a three-tier judicial hierarchy a right of appeal may be provided against all orders or judgments of the trial court with a clear provision requiring the appeals against interim orders of the trial courts to be filed with an advance notice to the opposite party and such appeals may be finally decided within a few days.
Shorter formats of judgments and orders ought to be introduced so that time of the courts is not wasted in writing unnecessary details and, as far as possible, law clerks, research assistants and judgment writers may be provided to the judges at all levels so that their time may be saved in matters of research and drafting.
The constitutional jurisdiction of a High Court must be exercised within its prescribed limits and resort to it as a matter of course as the next available remedy has to be stopped or discouraged. For constitutional cases of national importance a Constitution Bench may be administratively carved out in this Court from within the strength of the Court keeping in view the seniority of the relevant Judges and reflecting the Federal character as far as practicable.
My colleagues and I would also want this Court to attend to many laws which are either unnecessary or their wrongful utilization is clogging the courts. It shall be suggested to the legislature that such unnecessary or problematic laws ought to be repealed or suitably amended and in case of failure of the legislature to attend to the said issue such laws may be judicially scrutinized. There are also some issues of public importance with reference to enforcement of fundamental rights of the citizens which have hitherto remained unattended and an effort shall be made to attend to those issues in all earnestness within the shortest possible time.
Suo motu exercise of this Court’s jurisdiction under Article 184(3) of the Constitution shall be exercised very sparingly and only in respect of larger issues of national importance where either there is no other adequate or efficacious remedy available or the available constitutional or legal remedies are ineffective or are rendered incapacitated.
Either through a Full Court meeting or through a judicial exercise an effort shall be made to determine and lay down the scope and parameters of exercise of the original jurisdiction of this Court under Article 184(3) of the Constitution and, if deemed appropriate, to carve out the scope of an Intra-Court Appeal in such matters through an appropriate amendment of the Supreme Court Rules or to suitably amend the provisions relating to review jurisdiction so as to enlarge its scope in such cases.
I am conscious that the issues being faced by the justice sector are gigantic but I may assure you that no stone shall be left unturned in attending to such issues and in trying to improve the situation. With Baloch blood running in my veins I shall fight till the end and I am confident that with the support and cooperation of my colleagues and the Bar the struggle shall bear fruit.
Ladies and gentlemen,
Let us admit that in the recent past there has been a trust deficit between different organs of the State and every organ has reasons for sticking to its declared position. There is no gainsaying that all the three organs of the State, i.e. the Legislature, the Judiciary and the Executive are always to strive hard for exercising their powers and performing their functions to the best of their abilities while maintaining their independence and operational autonomy but at the same time when it comes to steering the ship of the State and handling the larger national issues all such organs are to work in tandem in finding solutions which advance the spirit and purposes of the Constitution. The constitutional doctrine of separation of powers is sound and valid so far as the institutional and operational independence of every organ of the State is concerned but nothing in the said doctrine demands institutional isolation or forbids collective efforts to achieve common good. In my humble estimation time has come when we should put our heads together and in the spirit of truth and reconciliation discuss the larger issues jeopardizing good governance.
Let us discuss with open minds where the judiciary, the executive and the legislature have gone wrong in the past. Let us discuss where each other’s domain has been encroached upon in the past and try to resolve such issues through a mutually agreed course of action. Let us discuss the alleged encroachment of the executive domain by the judiciary through interference in matters of policy, the alleged excessive use of its constitutional jurisdiction in matters which are administrative in nature and how best the judiciary can return to its normal but effective adjudicatory role. Let us also discuss why the judiciary is struggling hard while trying to handle huge influx of cases and where the other organs of the State have so far failed to provide it the requisite support. Let us also discuss how the legislature can be restricted to its legislative domain and how the legislators can be held back to their legislative role rather than encroaching upon the executive domain through development funds and through interference in appointment, posting, transfer or promotion of public servants which is the main breeding ground for misuse of authority, corruption, lack of merit, inefficiency and the resultant bad governance. Let us discuss how the executive authorities and departments are to be kept operationally autonomous in administrative matters while implementing the policies of the political executive so as to ensure good governance. Let us also discuss, without mincing words or feeling shy, the role of the armed forces and the intelligence agencies in the governance paradigm. Civilian supremacy as well as civilian accountability are sine qua non for democratic sustainability. Let us deliberate how civilian supremacy can be ensured alongside civilian accountability without the process of accountability destabilizing democracy. And, let us not forget or fail to discuss the issue of missing persons and of enforced disappearances and their adverse impact upon the constitutional scheme of things as well as national cohesion. It needs to be realized and appreciated by all the stakeholders that statecraft is too serious a business to be reduced to a game of hide and seek and that in a constitutional democracy national security cannot be pursued by employing methods which are offensive to the constitutionally guaranteed fundamental rights to life and liberty. Instead of adopting a trigger-happy approach or a devil may care attitude on these delicate and sensitive issues we need to find solutions from within the Constitution and the law. Let us, therefore, sit together and discuss. Let us not keep drifting or floating aimlessly. Time has come to reflect upon the past, learn from the mistakes and to define the future course of action with clarity lest the rudderless ship may be swept away by the storm of unbridled emotions and selfish short-sightedness. Let us not shy away from all such critical issues or look the other way in careless abandon and let us catch the bull by its horns if we want to make any progress as a forward looking and democratic nation governed by a Constitution. Let us call a spade a spade, rise to the occasion and try to emulate our founding fathers in an effort to rebuild our nation on the foundations of freedom envisioned by our revered elders.
I would, therefore, with the approval and support of my colleagues, propose holding of an inter-institutional dialogue at the summit level and would request the worthy President of Pakistan to convene a meeting and to chair the deliberations. I am of the opinion that we have reached a stage in our national life where we must take stock of the mistakes committed in the past and to come up with a Charter of Governance so as to ensure that such mistakes are not repeated in future. I would propose that such a summit may be attended by the top parliamentary leadership, the top judicial leadership and the top executive leadership including the military and the intelligence agencies. After bringing all such major stakeholders in the national governance on one table under the patronage of the President of Pakistan an effort should be made through such proposed exercise to heal the wounds of the past, attend to the sore points and work out a practicable policy framework whereunder every organ and institution of the State exercises its powers and performs its functions within its constitutionally defined limits. The sole purpose of the proposed exercise should be to bolster constitutionalism and rule of law, strengthen democracy and create an environment wherein the State and all its organs and institutions may be able to devote their wholehearted attention to the real issues of the citizens of this great country and, as envisaged in the Preamble to our Constitution, “So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity”.
In the end, with fondest of memories and with every good wish I on my own behalf and also on behalf of all my colleagues bid farewell to our very dear friend, our illustrious colleague and our distinguished Chief Justice Mian Saqib Nisar. Sir, we shall all miss you on the Bench but at the same time all of us pray for your good health, long life and further fruitful contributions in diverse walks of life in the days to come.
May Almighty Allah bless you and your family. A’meen.