ISLAMABAD: Attorney General Khalid Jawed Khan on Friday highlighted the need for developing an objective mechanism for an exercise by the Supreme Court of its inherent jurisdiction in enforcing fundamental rights under Article 184(3) of the Constitution.
“This power has been exercised by the apex court with great caution and most sparingly,” the AGP conceded, but suggested that the time had come for the apex court to consider and provide some objective guidelines and mechanism.
Such guidelines will help obviate its excessive use and might result in consequences not wholly beneficial for our jurisprudence as well as the judiciary, the AGP observed.
Khalid Jawed was speaking at a full court reference in honour of outgoing SC judge Justice Manzoor Ahmad Malik in courtroom No 1.
In addition to Chief Justice Gulzar Ahmed and Justice Manzoor Malik, the reference was also addressed by Khushdil Khan, vice chairman of the Pakistan Bar Council.
The need for devising rules and principles for the judiciary to handle public interest litigation had been expressed in the past too where a number of bar councils and associations emphasised the need for improving the system of case management.
Even the Pakistan Bar Council (PBC) had adopted a resolution in 2017 highlighting the need for a law that leaves room for challenging verdicts passed by the superior courts under Article 184(3).
The law reforms committee of the PBC had adopted a resolution suggesting the law ministry to consider amending the law, or even the Constitution, in order to provide the right of appeal to an aggrieved party — similar to the provision of intra-court appeal available in high courts against decisions of a single-judge bench.
The PBC resolution had asked for a legal provision of at least one right of appeal in cases decided by the judiciary under Article 184(3) to ensure a fair trial, as guaranteed by the Constitution under Article 10A.
The AGP said in his address at the full court reference that the foremost issue facing the judiciary was the prolonged pendency of cases before courts as it undermines the litigant’s confidence.
“A focused and sustainable response to this menace is immediately needed,” the AGP said, adding that there was a lack of diversity in the judiciary. “More women and members of religious minorities should be inducted into the superior judiciary as their absence affects the functioning and reputation of the institution.”
Paying tribute to Justice Manzoor Malik, the AGP recalled how the judge managed to soothe frayed nerves in a recently concluded case when the two parties tried to shout down each other.
“Justice Malik served as a voice of temperance on the day. His healing touch was felt far beyond the walls of the courtroom. It is an irony that at a moment when the healing touch is most needed, we are losing an individual who personified restraint,” the AGP said.
At the same time, Khalid Jawed observed, it was heartening to see that Justice Malik was not the lone voice of restraint.
Of all the tests that a mortal could be put to by the Almighty, the most difficult one comes not after defeat but after victory. Caroline Myss, an American author, summed this up beautifully: “The soul always knows what to do to heal itself. The challenge is to silence the mind.”
The attorney general, however, said individuals were important, but the journey must go on and nothing could be more sacrosanct than independence of the judiciary.
The Constitution creates courts and other institutions and invests them with powers and jurisdiction, but no constitution has ever conferred moral authority on any institution. “Moral authority stems not from the constitution, but from winning the trust of the people the institutions are meant to serve,” the AGP said.
The real strength of the apex court was the trust which the nation had in its independence, Khalid Jawed said.
“And yet like all other sources of energy, it needs constant renewal and refuelling.”
Chief Justice Gulzar Ahmed said in his address that Justice Manzoor Malik’s tireless contribution to the cause of justice, especially to criminal jurisprudence, had blazed a trail for generations of legal practitioners.
“Justice Malik will always be remembered with reverence and we will cherish our fond memories about him for a long time to come,” Justice Gulzar said.
In his speech, Justice Malik said the criminal justice system needed drastic changes to assuage the sufferings and misery of convicts who often serve a major part of their sentence awaiting disposal of their appeals.
Published in Dawn, May 1st, 2021