Daily Times

There are around 40,000 cases pending hearings only in the Supreme Court as the 25th Chief Justice of Pakistan leaves office on Thursday (today). The number runs into hundreds of thousands if cases pending hearings in lower courts are added to the tally. Our judiciary ranks abysmally among its peers in the region. The World Justice Project’s Rule of Law Index placed Pakistan at the rock bottom among six countries whose civil justice system was assessed in the region, and at 105th spot out of 113 countries worldwide.

This is the legacy honourable CJ Mian Saqib Nisar leaves behind. The fact of the matter is that our judicial system was hardly an efficient institution when he took office. However, the priorities he set out for himself as the top judge of the land influenced the day-to-day operations. In the public imagination, he may be remembered as the judge who would frequently visit hospitals, schools, and take suo motu notices of matters of concern. These were populist measures, which may have earned him some goodwill with some segments of the Pakistani public. However, as he leaves office today, we must remind the honourable CJP that this goodwill has been achieved at the cost of constitutionally mandated balance among powers of key state institutions and a robust judiciary which could have been trusted by the citizens to redress their grievances. Had he opted to do so, the CJP could have spent his time in office overseeing reforms in trial courts, where most citizens get to interact with our judicial institutions in their pursuit of justice. Unfortunately, for Pakistan, Mr Nisar had other priorities.

We are immensely thankful to the outgoing CJP for having raised his voice for crucial national issues like management of water resources and population control. However, with due respect, we want to point out that as he leaves office, Pakistan is still water scarce and population growth is still rampant.

That is because these are mammoth problems requiring cross-institutional action with a democratic mandate. It is also because, first and foremost, it is the task of the legislature and the executive, the judiciary does not have much to do with these issues prima facie. The judiciary’s role in these and other policy issues becomes relevant only to the extent that there is a conflict over interpretation of underlying laws, or if fundamental human rights are in question. None of these scenarios were yet apparent in the issues of public concern taken up by the outgoing CJP, giving the impression that the judicial activism in these instances was quite misplaced.

If the honourable CJP had given similar priority to judicial reforms, which would have required cross-institutional action that the CJP could have ensured with the powers vested in his office, we could be remembering him as the judge who fixed the judiciary and really made it deliver justice to the citizens.

The point to bear in mind here is that in many instances, the apex court gets involved into disputes that should have been settled at the trial court level if there were an efficient justice system in place. The situation is so poor in our trial courts that for ordinary Pakistanis, it has become common sense to not expect any relief from them, either in criminal or civil matters. Our labour courts are notorious for never having delivered an efficient judgement in favour of workers, in their grievances against the employers.

None of these problems are impossible to tackle. What is needed is simply some prioritising and an approach whereby one must be concerned, first and foremost, with the institution one is responsible for. Pakistan’s history is rife with unelected institutions of the state needlessly meddling into the affairs of elected institutions at the cost of inefficiencies persisting under their own noses. This will not take democratic governance forward.

As Justice Asif Saeed Khosa takes charge of the highest judicial office in the country, we hope that he will pay attention where it is due, and that he will leave the office with a legacy that is in accordance with the constitutional tasks of the judiciary.  *

Published in Daily Times, January 17^th 2019.