ISLAMABAD: Chief Justice-designate Asif Saeed Khosa has provided a peep into the framework he intends to formulate as the country’s foremost adjudicator and suggested that the legislature may provide for appeals in high courts against decisions made in military courts.
“Military courts trying civilians in criminal cases are universally perceived as an aberration propelled by necessity and expediency, and if the legislature, in its own wisdom, decides to continue with such courts then it may consider providing for appeals before a high court,” he said and added this would “adjust such courts in the normal judicial hierarchy”.
Justice Khosa was speaking at a full-court reference held in honour of outgoing Chief Justice Mian Saqib Nisar on Thursday. Attorney General Anwar Mansoor Khan, Vice Chairman of the Pakistan Bar Council Kamran Murtaza and President of the Supreme Court Bar Association Amanullah Kanrani also spoke on the occasion as did Chief Justice Nisar.
• Resolves to build dam against delays in determination of cases including 1.9 million pending ones • Outgoing chief justice highlights landmark verdicts handed down during his tenure • Judge who recently questioned Justice Nisar’s decision skips full-court reference
However, Justice Mansoor Ali Shah, who recently issued a note questioning an earlier decision of the outgoing chief justice, was conspicuous by his absence from the reference.
Justice Khosa also proposed an inter-institutional dialogue for developing what he called a charter of governance. “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 come up with a charter of governance to ensure that such mistakes are not repeated. I would request the worthy president of Pakistan to convene a meeting and to chair the deliberations which should also be attended by top parliamentary leadership, the top judicial leadership and the top executive leadership, including the military and the intelligence agencies,” he said.
The need for deliberating on how to ensure civilian supremacy alongside civilian accountability but without destabilising democracy was also highlighted by Justice Khosa.
Without mincing words, he said the time had come to also discuss the role of the armed forces and the intelligence agencies in the governance paradigm and highlighted the need for keeping in mind the emotive issue of missing persons and enforced disappearances because it impacted adversely on the constitutional scheme and national cohesion.
“After bringing all major stakeholders in national governance to one table, efforts should be made to heal the wounds of the past, attend to the sore points and work out a practicable policy framework where every organ and institution of the state exercises its powers and performs its functions within its constitutionally defined limits,” Justice Khosa proposed.
“The sole purpose of the inter-institutional dialogue should be to bolster constitutionalism and rule of law, strengthen democracy and create an environment where the state and all its organs and institutions may be able to devote their wholehearted attention to the real issues of the citizens, as envisaged in the preamble to our Constitution,” Justice Khosa said.
“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,” he observed.
“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 jeopardising good governance.
“Let us discuss with open minds where the judiciary, the executive and the legislature have gone wrong in the past and let us discuss where each other’s domain has been encroached upon and try to resolve such issues through a mutually agreed course of action,” he said.
Justice Khosa also called for a discussion on how the legislature could be restricted to its legislative domain and stopped from encroaching upon the executive domain through development funds and through interference in appointment and posting of public servants, which was the “main breeding ground for misuse of authority, corruption, inefficiency and the resultant bad governance”.
“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 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,” Justice Khosa said.
In a constitutional democracy national security could not be pursued by employing methods which were offensive to the constitutionally guaranteed fundamental rights to life and liberty, he said. “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.”
Justice Khosa expressed the hope that he would manage to build “dams against undue and unnecessary delays in judicial determination of cases, against frivolous litigation, against fake witnesses and false testimonies” and would also try to retire the “debt of pending cases that must be decided at the earliest”.
There were about 1.9 million cases pending in the country and to handle such a huge number of cases there were only about 3,000 judges and magistrates available, he said.
Justice Khosa added that the power to take suo motu notices would be used only sparingly.
The outgoing chief justice said on the occasion that during his tenure the apex court issued several landmark verdicts, including the one about Gilgit-Baltistan. The court also took steps to ensure water security for the people of Pakistan.
“The rights of our minorities are no longer mere highlights of our speeches. Christians’ marriages are to be issued certificates by Nadra [National Database and Registration Authority] the way Muslim marriages are. And the Katas Raj temple has been restored,” said Chief Justice Nisar.
He added: “I worked within the code of conduct for judges and it has been my honour to have served the nation.”
Published in Dawn, January 18th, 2019