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Chief justice’s challenges

March 31, 2019

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The writer is a lawyer.
The writer is a lawyer.

“Great judges succeed most when they are praised not so much for the legal soundness of their work, but for the sit-up-and-take-notice boldness of their interventions”. — Allan Hutchinson, author

“ASIF, right from his early childhood, has always made his own independent decisions … The family would call him a philosopher child,” is how Sardar Faiz Muhammad Khan Khosa, father of the present chief justice of Pakistan, Asif Saeed Khosa, described his son’s desire for independence and excellence. Even before he assumed his present office, it is these two qualities which made Justice Khosa a success story: Law from Cambridge, barrister, author and teacher, leading to a judicial career marked by devotion, creativity and, importantly, remarkable courage. Examples of the latter include, imposing constitutional limits on Musharraf’s dictatorship, holding to account then prime ministers Yousuf Raza Gilani’s and (later) Nawaz Sharif’s betrayal of the public trust, passing a verdict against the religious fanaticism of Mumtaz Qadri and other unknown fanatics and fighting the evil of delay by disposing of nearly 55,000 cases.

But great judges do not necessarily make great chief justices. Like Afzal Zullah, Ajmal Mian, Iftikhar Chaudhry and Saqib Nisar, great chief justices should also have a judicial vision, and more importantly, the will and strategy to implement it.

The criminal apathy of the government imperils judicial reform.

Khosa’s vision: In his address at the full-court reference for former chief justice Saqib Nisar in January, CJP Khosa identified three key goals as he formulated his judicial vision. First, he said, he would “like to avail every moment of my remaining time on the bench to attend to the causes that contribute towards delay in the disposition of cases” or build a “dam against undue and unnecessary delays”. Tackling judicial delay is his passion. The main cause for delay is also clearly identified by him — “3,000 judges and magistrates cannot handle 1.9 million cases even if they work for 36 hours a day”, especially considering the increase in cases every day. As Justice Munib Akhtar once pointed out “there are too few judges chasing too many cases”.

CJP Khosa’s observations have brought into focus some key measures to tackle judicial delay:

a) “Successive governments have failed to suitably increase the number of judges and magistrates,” he said — meaning a substantial increase in judges is required and, according to him, 25 per cent of the current vacant posts to be filled.

(b) He also noted that the “Time has … come when the judicial system as a whole needs to be redesigned or restructured and made simple and effective”. This means a simple three-tier, as opposed to the current four-tier, judicial system, eliminating an extra tier of judicial delay. It also means a single appellate system, with the high courts being the final forum for facts, and the Supreme Court entertaining only matters of legal interpretation. Special courts would be abolished, as these lead to delay because of jurisdictional disputes.

(c) He also observed that there should be no adjournments for lawyers and no delay in writing judgments, which should be short.

Second, contrary to the elite and liberal propaganda against the Iftikhar Chaudhry and Saqib Nisar courts, suo motu and human rights cases under Article 184(3) constitute less than 1pc of the total number of Supreme Court cases. CJP Khosa is right that this jurisdiction should “be exercised very sparingly” and has suggested two critical reforms: (a) laying down the parameters of this jurisdiction; and (b) introducing an intra-court appeal (as in contempt matters) or enlarging the review jurisdiction in Article 184(3) cases.

Third, unless we intend to “keep drifting or floating aimlessly”, he proposes “an inter-institutional dialogue” chaired by the president of Pakistan and attended by the judicial, parliamentary, executive and military leadership (including the intelligence agencies). Such a proposal recognises both the institutional deadlock and Pakistan’s power realities. This out-of-the-box thinking can save us unless we want to be consumed by the fires of institutional conflicts.

Revenge of the status quo: Opposition to this vision will come from group mindsets that sustain the status quo.

Firstly, most of the suggested reforms regarding judicial delay, Article 184(3) powers and inter-institutional dialogue also involve legislative and executive actions by the government. But nothing has happened despite the passage of over two months since CJP Khosa took office. The criminal apathy of the government imperils judicial reform.

Secondly, as recent examples of violence by lawyers against judges and bar council strikes against judicial reforms have demonstrated, the lawyers’ community is being transformed — from a reform movement which restored judicial independence against Musharraf’s military rule to an anti-reform movement which safeguards its own narrow interests.

Thirdly, most Pakistani judges want to do effective justice but require both the singular determination to reduce judicial delay and coming up with a court management strategy in this regard. Only creative, reform-oriented high court chief justices (eg former LHC CJ Mansoor Ali Shah) can rectify the evils of delay.

Fourthly, any creative and post-colonial suggestion like an inter-institutional dialogue will be opposed by groups benefiting from institutional infighting as well as by legal fundamentalists who naively believe that Pakistan must follow a constitutional path exactly like the West’s.

Cambridge vs Baloch blood: “With Baloch blood running in my veins honour is the most precious thing in my life after my faith,” declared CJP Khosa. Dealing with judicial delay and reforming the jurisdiction under Article 184(3) may satisfy his desire for judicial excellence imbibed through his Cambridge training, but his Baloch conscience based on honour can provide a solid basis for dealing with evils like enforced disappearances and extrajudicial killings.

Building on the judicial contributions and courage shown on this issue by former chief justices Chaudhry and Jawwad Khawaja and current Islamabad Chief Justice Athar Minallah, the honour of the Pakistani people and their faith in fundamental rights can never be restored unless the missing persons issue is solved. Moreover, this may be the last opportunity of saving Balochistan from becoming another Bangladesh.

Thus, both formidable challenges and unparalleled opportunities await CJP Khosa.

The writer is a lawyer.

Published in Dawn, March 31st, 2019