As the year draws to a close, the curtain falls on the judicial career of Justice Asif Saeed Khan Khosa. Perhaps most famous for his dissenting judgment disqualifying Nawaz Sharif as Prime Minister, Justice Khosa leaves behind a rich and varied legacy.
Appointed as Chief Justice of Pakistan in January 2019, he inherited a hyper-activist Supreme Court frequently accused of judicial overreach under the stewardship of his controversial predecessor, Saqib Nisar.
At the time, the top court was routinely branded with making populist decisions at the expense of adherence to the law and with unduly interfering in the work of the government while neglecting its own duties.
It is to the enduring credit of Justice Khosa that upon his retirement, it can be safely stated that much of the moral authority and credibility of the judiciary has been restored under his watch.
For those who dream of a progressive and tolerant nation, his judgments in the Mumtaz Qadri and Asia Bibi cases must rank as some of his greatest contributions.
At the time that Qadri’s appeal against his conviction and death sentence in the Salman Taseer murder case was fixed before the Supreme Court, the former police commando who killed the man he was entrusted to protect was a hero to millions. Among the advocates handling Qadri's defence could be counted a former chief justice of the Lahore High Court and another retired judge of the same court. Huge crowds took to the streets to demand Qadri's immediate release and the threat of violence loomed large.
It was in this tense, charged atmosphere that a three-member bench of the Supreme Court headed by Justice Khosa took up the review petition in Oct 2015. Doubts were expressed as to whether the Supreme Court would be able to withstand the intense pressure and deliver justice but those were comprehensively put to rest in the judgment comprising 39 pages of clinical analysis.
The judgment was unequivocal regarding these matters: that Qadri had admitted to killing Taseer, that there was no legal justification for the murder, that merely suggesting improvements to the blasphemy law to prevent its misuse could not constitute blasphemy, and that in any case “the law of the land does not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executioner”.
The judgment also noted that a majority of prosecutions under the blasphemy law were based on false accusations by parties with personal vendettas in mind or arising from property disputes. The bench also made the obvious but, in the context of Pakistan, welcome statement that the court was “obligated to decide this case in accordance with the law of the land as it exists” and not in accordance with any group’s or person’s wishes as to what the law should be.
Qadri’s appeal was dismissed and his death sentence upheld. The verdict was an act of tremendous moral courage by the Justice Khosa-led bench and a signal triumph for the rule of law. In the face of grave threats, the Supreme Court had not blinked or backed down.
Three years later, Asia Bibi’s appeal against her blasphemy conviction and consequent death sentence was fixed before the Supreme Court. Justice Khosa was one of the three members of the bench hearing the appeal. In the meantime, a magnificent shrine to Qadri’s memory had been erected by his supporters where large crowds thronged daily to pay homage to him.
The Asia Bibi case had garnered huge international attention with no less a figure than the Pope publicly calling for clemency. She had been convicted of blasphemy by a trial court in 2010 and sentenced to death under relevant provisions of the law. The charge revolved around an accusation by her co-workers that while plucking berries in a field in their village, Bibi had uttered blasphemous words. This allegation had always been denied by Bibi who maintained that she had been falsely implicated due to a quarrel she had had with her Muslim co-workers who had refused to drink water fetched by her on the grounds that it was haraam (forbidden under Islamic law) to drink water from the hands of a Christian. Hot words had ensued following which blasphemy charges were laid against her.
Bibi’s appeal against her conviction and death sentence had been rejected by the Lahore High Court and she had spent much of her incarceration in solitary confinement. It was in this backdrop that the Supreme Court took up the hearing of her final appeal in Oct 2018 and if anything, the atmosphere was even more charged than it had been during the hearing of the Qadri appeal.
Massive demonstrations were held by the religious right baying for her blood and leaders of the hardline Tehreek-e-Labbaik Pakistan (TLP) had threatened violence and warned of paralysing the country within hours if the Supreme Court set Bibi free.
As the Supreme Court reserved its judgment on the appeal on Oct 8, 2018, the nation held its breath. The TLP warned the judges that they would meet a “horrible end” if the verdict was favourable to Bibi.
On Oct 31, 2018, the bench unanimously ordered Bibi's acquittal. The 56-page detailed judgement authored by then CJP Nisar, also entailed a separate concurrent opinion note from Justice Khosa which is a masterly analysis of the evidence in the case laying bare glaring inconsistencies in the testimony of the prosecution witnesses.
The judgment also referred to the Covenant of the Prophet Muhammad (Peace be upon Him) with the monks of Mount Sinai and emphasised the Prophet’s declaration that “Christians, all of them, were his allies and he equated ill treatment of Christians with violating God’s covenant”. All right-minded Pakistanis heaved a collective sigh of relief upon the righting of a grave injustice.
It is impossible to overstate the importance of the Qadri and Bibi rulings. In a country where progressive thinking has ceded so much space to fanaticism and fear of the religious right has suffocated rational discourse, these verdicts are an emphatic assertion of the rule of law.
Of course, Justice Khosa was no stranger to high profile cases. In 2010, he was part of the Supreme Court bench that disqualified then sitting prime minister Yousaf Raza Gilani for contempt of court for failing to obey an order of the Supreme Court wherein the latter had directed the federal government to become a party in a money laundering case in Switzerland involving Asif Zardari.
The separate note of Justice Khosa in this case contains a poem composed by himself along the lines of a well-known poem by the Lebanese poet, Khalil Gibran, in which Justice Khosa bemoaned the state of society, where leaders flouted the law at will and selective justice prevailed. Indeed, the lyrical pen of Justice Khosa is much in evidence in many of his judgments which are often peppered with literary references ranging from Shakespeare to John Donne. And one does not have to agree with every judgment penned by him to derive literary enjoyment from the vivid prose employed.
The theme of moral accountability of leaders was developed more fully in the famous Panama case. In his judgment, Justice Khosa held that the sitting prime minister of the time, Nawaz Sharif, had not been honest with the nation, with the elected representatives in the National Assembly, and to the Supreme Court, in explaining his acquisition of properties in London. As a consequence, he did not meet the sadiq and ameen conditions for Parliamentarians contained in the Constitution of Pakistan and therefore stood disqualified both as a member of Parliament and consequently as prime minister.
Read further: 13 damning remarks made by Justice Khosa on Panamagate
This decision has been criticised by some quarters as having deprived a democratically-elected prime minister of his fundamental rights of due process and fair trial. Justice Khosa’s response to this criticism has been that all public institutions such as National Accountability Bureau (NAB), Securities & Exchange Commission of Pakistan (SECP) and the Election Commission of Pakistan (ECP) had failed to take the prime minister to task and it was evident that these institutions had been compromised. According to him, in such circumstances, it was proper for the Supreme Court to directly intervene. However, it does seem that perhaps here Justice Khosa allowed his zeal for moral accountability to trump due process, amounting to a dangerous precedent.
Away from the glamorous spotlight of high profile cases, one of Justice Khosa's significant contributions has been the speed at which he has disposed of cases before him. Widely acknowledged as an excellent criminal judge, by some accounts he has decided more than 50,000 criminal appeals during his judicial career. It may seem strange to laud someone merely for doing their job but in the context of Pakistan’s glacially slow and inept criminal justice system, where prisoners and death row convicts languish for years in jails awaiting disposal of their appeals, quick and efficient decision of cases is a significant contribution to justice. In the preface to his book, Judging with Passion, he emphasises the pride and satisfaction he feels at aiming for excellence in his work.
His passion for quick disposal of cases was in evidence at the farewell speech he gave in honour of the retirement of his predecessor Chief Justice. He observed that just as Saqib Nisar’s ambition was to build dams to address Pakistan’s water scarcity problems, his ambition was to build different kinds of 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…”. To this end, as Chief Justice of Pakistan, he instituted district-wise model courts where day to day hearings of cases could take place and lawyers would not be granted adjournments. It is too early to assess whether these model courts will have a lasting impact but the early signs are encouraging. It was reported in Nov 2019 that in the span of a few months, model criminal courts had decided 18,908 cases while model civil courts were also disposing of cases expeditiously.
Another recent initiative by the Supreme Court to facilitate the day to day administration of justice has been the introduction of video links enabling lawyers in certain cases to address arguments through video link instead of travelling to the Supreme Court each time. This is meant to save time and money and to curtail adjournments in cases. As part of much needed modernisation, technology is gradually being integrated into our court systems.
One of Justice Khosa’s pet peeves has been the sheer volume of false testimonies and lying witnesses in our courts. He has repeatedly stressed that unless this issue is tackled, the administration of justice cannot be put on a sure footing. Earlier this year, a Supreme Court bench headed by him gave a landmark ruling to address the problem. The court held that the legal maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) would apply to all criminal cases in Pakistan. In essence, this legal principle holds that a witness who lies about any material fact must be disbelieved as to all facts. In addition, the Supreme Court directed that a witness found by a court to have resorted to a deliberate falsehood should invariably be proceeded against for committing perjury.
Judicial restraint has been a hallmark of Justice Khosa’s tenure as Chief Justice. In recent years, indiscriminate and inconsistent use of suo motu jurisdiction by the Supreme Court coupled with undue interference in the workings of the executive had led to a loss of credibility of the institution. The take-over of policy-making by the judiciary, instead of focusing on its constitutional role of interpreting laws and deciding cases, can have a negative impact on other democratic institutions as well as on the economy. Justice Khosa’s philosophy of judicial restraint was thus a much needed course correction for the country's superior judiciary.
Of course, all has not been smooth sailing. Many questioned the decision given in the matter of extension of the Chief of Army Staff (COAS) with critics alleging that the only reason for Justice Khosa taking up the matter was with an eye to enhancing his legacy rather than a real motivation to uphold the supremacy of law. In fact, on this count, he has been attacked by two opposing camps with one point of view holding that he had not gone far enough and should have prevented the extension of the COAS and the other arguing that the matter of (re)appointment of COAS is a prerogative of the Prime Minister under the Constitution in which the courts have no business to interfere. This may not be an entirely fair assessment and it can be argued that Justice Khosa employed a measure of wisdom in steering a middle course by sending out the message that extensions/re-appointments should be made subject to law so as to promote transparency and institutional integrity while at the same time respecting the right of the government of the day to appoint the COAS.
Finally, some are of the view that the recent horrendous attack on the Punjab Institute of Cardiology (PIC) by a group of lawyers which resulted in several deaths was the right case for invoking suo motu powers by the Supreme Court and that by not doing so, Justice Khosa inadvertently allowed the situation to deteriorate. This view holds that none of the other reforms in the justice system will be worth much unless the members of the Bar are held accountable for their actions.
These criticisms notwithstanding, there can be no doubt that Justice Khosa has been a judge of integrity, courage and competence. By focusing on putting the judiciary’s own house in order and by resisting the temptation to interfere in matters beyond his ken, he has set the judiciary on the right track. His will be a hard act to follow.