Daily Times

There is every reason to be excited as Justice Asif Saeed Khosa wears robes as twenty-sixth Chief Justice of Pakistan. In his address on January 17, 2019 at the full court reference for former Chief Justice Saqib Nisar, Justice Khosa shared his vision for the future course of the court. Making reference to the populism of his predecessor, whom he fondly described as his “conjoined twin”, Justice Khosa said: “I would also like to build some 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 and would also try to retire a debt, the debt of pending cases which must be decided at the earliest possible.”

Justice Saqib Nisar, without any doubt, would go down as one of the most prolific judges to have graced our court. His Lordship’s opinions across the legal spectrum from civil, criminal, administrative and to employment laws, have significantly taken our jurisprudence forward in these areas. His treatment of judicial precedent in his various opinions is indicative of his enviable intellect and gifts as legal jurist. Perhaps the greatest disservice to the man would be to only remember him for his unsparing use of original jurisdiction.

Once a strong proponent of judicial conservatism and vocal critic of activism of Chaudhary Court; Justice Saqib Nisar transformed as a judge, it appears, once he became the Chief Justice. While he concurred with the conclusion of majority (on saving constitutional amendments) on the challenges thrown at the 18th and 21st amendments to the Constitution in the case of District Bar Association, Rawalpindi, he chided the theory of salient features of the Constitution. He opined that the test of salient features to review Constitutional amendments would be tantamount to replacing military autocracy with judicial autocracy.

Wriggling around the need to issue declaratory pronouncement on text of 21st Constitutional amendment, in a stroke of pure genius, Chief Justice Asif Saeed Khosa struck down the legislative enactment of Pakistan Army (Amendment) Act, 2015 as ultra vires the Constitution stating: “jurisdiction of military courts for trial of civilians is still not founded on any power conferred by any provision of the Constitution.”

His conjoined twin, also adopted a cautious approach in the case of District Bar Association, Rawalpindi to the extent of challenges thrown at the 18th amendment. Justice Khosa also disagreed with salient features doctrine due to our “ever changing constitutional dispensation” and opined that amendment in Constitution could only be struck down if procedural requirements as mandated by the Constitution were flouted. However, he has consistently believed in substantive justice, and this is where he was always different from his predecessor. He dissented with the conclusion of majority on trial of civilians by military courts. Wriggling around the need to issue declaratory pronouncement on text of 21st Constitutional amendment, in a stroke of pure genius, he struck down the legislative enactment of Pakistan Army (Amendment) Act, 2015 as ultra vires the Constitution stating: “jurisdiction of military courts for trial of civilians is still not founded on any power conferred by any provision of the Constitution.”

To remind the readers, Justice Khosa penned the note: Pity the Nation; when the court convicted the Prime Minister Yousaf Raza Gillani in contempt proceedings and removed him from office. And he also authored a landmark concurrence in Panama Papers Case, concluding that the Prime Minister of Pakistan, had not been honest to the nation, to the representatives of the nation in the National Assembly and to this court.

Judicial activism is a loose term employed mostly bereft of context. It does not only involve excessive use of the original jurisdiction but it also envelops the approach of the Bench on different issues it is asked to answer. For a non-elected panel of elite jurists to send home packing two elected Prime Ministers and for a Bench to hold it cannot just review Constitutional amendments but can also strike them down on any judicially constructed test that has no basis in the text of the Constitution; is indeed hyper judicial activism.

In his address, Justice Khosa proposed a policy solution in the form of Charter of Governance for course correction of the coordinate branches. This is an indication of his dynamism as jurist.

The Supreme Court in our democracy has continued, as I have argued before, to gain greater ground. This will not change under Justice Asif Saeed Khosa. However, his approach, like he has proposed in his address, could be starkly different from his predecessor, in navigating the apex court through the troubled waters of our democracy. As Justice Khosa embarks on his journey as the Chief Justice, carrying an enormous burden on his shoulders, with history as final arbiter, we; the people, as interested parties, will be rooting for him!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, January 21^st 2019.