A DAY before his swearing in as head of the Supreme Court, Justice Asif Saeed Khosa gave a robust indication of the direction in which he seeks to steer the judicial system during his tenure.
At the full court reference for Justice Saqib Nisar, who retired on Thursday, the chief justice-designate emphasised the importance of repairing our broken justice system.
Using the analogy of issues dear to his predecessor’s heart, he spelled out the problems he is determined to address in this sphere. “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.…” he said.
If these fine words, uttered before in vain by other chief justices, are translated into action with Justice Khosa at the helm, it would be a laudable achievement.
The bedrock of a well-ordered society is a well-functioning judicial system. Achieving even a reasonable semblance of one would also preclude the ‘need’ for military courts which were described by the judge himself on Thursday as “an aberration propelled by necessity and expediency”.
Perhaps in this is an implied recognition of the perils inherent in a blurring of institutional boundaries. One would certainly hope so.
For most of Pakistan’s history, the superior judiciary has unfortunately wielded its power not to strengthen democracy, but to undermine and discredit it.
Today, despite the appearance of a constitutional democracy, there is in the country an unmistakable drift towards a more authoritarian ethos. In this climate, to stray from a narrowly defined nationalism means to forgo the protection of the state — in fact, it is tantamount to inviting harsh extrajudicial sanctions.
However, as Justice Khosa rightly said at the full court reference, “national security cannot be pursued by employing methods which are offensive to the constitutionally guaranteed fundamental rights to life and liberty”.
Indeed, in his view, such an approach can damage national cohesion itself. Sadly, that is a lesson we have yet to learn, either from our past or our present.
But learn it we must if we are to attain our potential as a peaceful and progressive nation. Towards the end of his address, Justice Khosa’s appealed for a candid appraisal by state institutions of their actions through the years. His proposal of an inter-institutional dialogue is not an original idea — several political leaders have proposed the same at various times — yet it is an eminently practical one.
Escalating tensions between state institutions have contributed enormously to political instability. And the judiciary has a critical role to play in re-establishing the separation of powers — above all, in ensuring that accountability is a concept that is applied fairly and consistently rather than in the service of political witch-hunts.
Published in Dawn, January 20th, 2019