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The path less travelled

Updated March 26, 2019

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The writer is a journalist.
The writer is a journalist.

THIS is the story of two men, of whom only one wanted to take the path less travelled. One was interested in ‘public welfare’, including building a dam, and months after his retirement, he is still travelling around the world, being feted and photographed. The other had grand ambitions too — to reform the system he had worked his way through, but it is an agenda not as straightforward and popular as the first one.

Take a look: Former chief justice Saqib Nisar — Judging too much

In this tale of two men, it seems that the first had it easy, even though his cause had more news value. In hindsight, it was more about flourish than content. Later, he even conceded that his movement was more for the sake of awareness than for actually building the reservoir, even though the fund continues to be in the news. Reform, on the other hand, has fewer cheerleaders. Few have even noticed the effort that Supreme Court Chief Justice Asif Saeed Khosa is putting into it.

When he was taking over, he famously said, “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.”

And he has been at it. He has written more than one judgement on fake testimonies and how they are to be treated — but they get little attention, or not as much had he called some government officials in to berate them in court, or if he had passed pithy remarks about corruption.

Regarding Article 184(3), there is an eerie silence from the big white building on Constitution Avenue.

In that speech, the now chief justice had also spoken about using the court’s suo motu powers sparingly — but it is said he had greater plans. He wanted to draw or redraw some of the parameters of the powers under Article 184(3). There is, however, an eerie silence from the big white building on Constitution Avenue on this issue. That the chief justice has not changed his mind is evident from his own prudent use of these powers — he has only now taken his first such case (the alleged suicide of retired Brig Asad Munir). He resisted the temptation to do so when the Sahiwal firing incident happened, which would have caused many a gavel-holding finger to itch.

But the larger questions around the issue of suo motu actions under Article 184(3) have not been addressed. Or have they?

There was an intriguing report in an English-language paper last month about a full-court meeting that was apparently held quietly. The report went on to discuss the difficulty of making changes to Article 184(3) because it would mean judicial consensus. And this might not be easy considering that the majority of the judges have been part of one suo motu case or another. From the disqualification of politicians and the matter of school fees to the Faizabad dharna, it is hard to find a robed one who did not find something that involved ‘fundamental rights’. Also, there is the question of whether this is a matter for the judges or the legislature.

It is said that this elusive consensus is the reason for the apparent silence on this issue. But it seems as if Justice Khosa is a lonely man, in more ways than one.

Recently, he also tried to curb the trend of applications for registration of an FIR being heard by a sessions court judge before the complainants have exhausted the police system till SP level. A national judicial policymaking committee meeting said that applications under Section 22-A of the CrPC should not be heard by courts unless accompanied by district SP complaints. This section gives sessions and high court judges the power to order the registration of an FIR or a criminal complaint if the police are not doing so. But the committee, which includes all the chief justices, felt that such an application should not come to the courts till the police forums — up to SP level — had been tried and found wanting.

This is because this section is seen to involve the judiciary in executive functions, while adding to the burden of the judiciary. A report in a national daily said that from January 2017 to February 2019, over 600,000 applications were filed with the district judiciary in this regard.

But this time, it was the lawyers that took umbrage: it would give the police too many powers which the force would obviously abuse, and how could the legal community, which always has the public’s interest at heart, leave the poor people at the mercy of the big bad cops? This appeared to be the gist of the long press release which also warned of a protest if the decision was not reversed.

Probing further, it does not seem as if the issue is as straightforward. Apart from the debate over judges (instead of the legislature) modifying the law, this was also about the judiciary having consulted the lawyers and taking them on board first. Such major decisions cannot be taken unilaterally, it was argued.

But then keep the discussion going and probe a little deeper and it turns out that there is another heft, material reason at play. The lawyers get paid to take such complaints to the sessions judges who can order the police to register complaints. A ‘senior’ lawyer, who clearly did not want to be named, has been reported as saying that 95 per cent of the complaints in the lower courts are applications under this section, asking the courts to direct the police to do this or that. So, it seems, that reform is hard work. Especially because it hurts those who have learnt to profit from an imperfect system. And this makes it unpopular work.

And this is also why it is easier to dabble in building dams or berate weak politicians for corruption or negligence; both make for great news stories and require little dogged application and effort. Perhaps this is why more will follow Saqib Nisar than try to fill the shoes of Asif Saeed Khosa.

The writer is a journalist.

Published in Dawn, March 26th, 2019