A tumultuous tenure ends

* Calls for introducing a 'Charter of Governance' to ensure that past mistakes are not repeated

Pakistan swears in a new chief justice on Friday (today), ending a whirlwind era under outgoing Chief Justice Mian Saqib Nisar and opening the next chapter for the Supreme Court which has pursued an expansive agenda ranging from ousting a sitting prime minister to launching multiple inquiries aimed at reforming public institutions, going after political leaders and pressing authorities to build dams and control burgeoning population.

A full court reference was held in the honour of 25th Chief Justice Mian Saqib Nisar on the occasion of retirement at the Supreme Court on Thursday. The reference was addressed by the outgoing chief justice as well as Chief Justice-designate Asif Saeed Khosa. All Supreme Court judges with the exception of Justice Mansoor Ali Shah attended the ceremony.

Addressing the reference, Chief Justice-designate Justice Asif Saeed Khosa said that during his tenure as top judge, he will ensure quick dispensation of justice and will build a dam against fake cases and the pending cases, as currently there were 1.9 million cases pending in different courts. “I want to build a dam against false witnesses as well,” he said, adding, “The power to take suo motu notices will be used sparingly.”

“Suo motu exercise of this court’s jurisdiction under Article 184(3) of the constitution will be exercised very sparingly and only in respect of larger issues of national importance where either there is no other adequate or efficacious remedy available or the available constitutional or legal remedies are ineffective or are rendered incapacitated,” he said.

“I also want to pay off the country’s loans and I will pay off the loans of cases that have been pending for year,” he pledged.

He expressed that either through a full court meeting or through a judicial exercise, an effort will be made to determine and lay down the scope and parameters of exercise of the original jurisdiction of the Supreme Court under Article 184(3) of the constitution. “If deemed appropriate, to carve out the scope of an intra-court appeal in such matters through an appropriate amendment of the Supreme Court rules or to suitably amend the provisions relating to review jurisdiction so as to enlarge its scope in such cases,” Justice Khosa said.

“For facilitation of the learned counsel and in order to minimise the chances of adjournments, modern technology shall be utilized and a possibility shall be explored regarding establishing video links between the branch registries of this court and the principal seat through which the learned counsel may address arguments in the courtrooms of the branch registries and appropriate benches of this court may hear those arguments at the principal seat in real time and decide cases,” he said, while laying out his future plans. “The four-tier judicial hierarchy in the country ought to be replaced with a three-tier system wherein there should be the district judiciary as the trial court for all civil and criminal cases, the provincial high courts as the courts of appeal in all cases and the Supreme Court as the last resort,” he said. “All the special courts ought to be abolished and there ought to be one hierarchy of courts with specified judges of the district judiciary attending to cases under the special laws like drugs, banking, narcotics, corruption, terrorism, labour, intellectual property and consumer protection, etc. with appeals in such cases going to the high courts,” he said.

“Military courts trying civilians in criminal cases are universally perceived as an aberration propelled by necessity and expediency. If the legislature, in its own wisdom, decides to continue with such courts for the time being then it may consider providing for appeals from their decisions to lie before a high court so as to adjust such courts in the normal judicial hierarchy and to ensure that expediency does not trump justice,” the incoming chief justice said. “Shorter formats of judgments and orders ought to be introduced so that time of the courts is not wasted in writing unnecessary details,” he said.

“For constitutional cases of national importance a Constitution Bench may be administratively carved out in this court from within the strength of the court keeping in view the seniority of the relevant judges and reflecting the federal character as far as practicable,” Justice Khosa said. “My colleagues and I will also want this court to attend to many laws which are either unnecessary or their wrongful utilization is clogging the courts. It shall be suggested to the legislature that such unnecessary or problematic laws ought to be repealed or suitably amended and in case of failure of the legislature to attend to the said issue such laws may be judicially scrutinized,” he added.

“Let us admit that in the recent past there has been a trust deficit between different organs of the State and every organ has reasons for sticking to its declared position. There is no gainsaying that all the three organs of the State, i.e. the Legislature, the Judiciary and the Executive are always to strive hard for exercising their powers and performing their functions to the best of their abilities while maintaining their independence and operational autonomy but at the same time when it comes to steering the ship of the State and handling the larger national issues all such organs are to work in tandem in finding solutions which advance the spirit and purposes of the constitution,” he said.

“I am of the opinion that we have reached a stage in our national life where we must take stock of the mistakes committed in the past and to come up with a Charter of Governance so as to ensure that such mistakes are not repeated in future. I would propose that such a summit may be attended by the top parliamentary leadership, the top judicial leadership and the top executive leadership including the military and the intelligence agencies. After bringing all such major stakeholders in the national governance on one table under the patronage of the President of Pakistan an effort should be made through such proposed exercise to heal the wounds of the past, attend to the sore points and work out a practicable policy framework where under every organ and institution of the State exercises its powers and performs its functions within its constitutionally defined limits,” he said.

Justice Khosa said the outgoing chief justice had faced many constitutional, societal and political challenges during his tenure and headed the judiciary in ‘very difficult circumstances’. Justice Nisar’s services for humanitarian causes will be always remembered, he added.

Addressing the full court reference, outgoing Chief Justice Mian Saqib Nisar said the apex court gave several landmark decisions under him, including that of Gilgit-Baltistan. “We took notice of water scarcity in the country and the whole nation donated to resolve the issue,” he said. “Another issue that the court raised was that of the rapid increase in population,” he added.

“Now, the rights of our minorities are no longer merely highlights of speeches; Christian marriages are to be issued marriage certificates by NADRA the way Muslim marriages are; and the Katas Raj Temple has been restored,” he said while highlighting his achievements. “NADRA was directed to issue identity cards to the transgender in a broader attempt to reduce, if not remove entirely, the stigma attached thereto,” he said, adding that the judiciary also took notice of healthcare issues in Pakistan.

“I worked within the code of conduct for judges and it has been my honour to have served the nation,” he said. “I have earned more contentment, satisfaction, prayers and respect than I ever expected,” he concluded.

Published in Daily Times, January 18th 2019.