Justice Saqib Nisar has taken the honourable chair of Chief Justice of Pakistan on December 31, 2016. Legal fraternity and the general populace are looking toward him with the new hope that he will replace decade’s old inherited flaws and challenges in the judiciary. Few challenges are so serious that they need the vigilant attention of the new chief justice to handle them through a modus operandi.
Panama leaks case is the first and foremost challenge for the new chief justice. The case has caught the eyes of many not only in Pakistan but abroad as well. The former ChiefJustice Anwar Zaheer Jamali has also conducted few speedy proceedings in the case to reach a conclusion but failed due to failure on the part of the both parties to table substantialevidence before the August court. The case before the Supreme Court is much more important as it is public’s interest question and it needs more seriousness on the part of the judges to carefully examine all those facts through which they reach to a conclusion. So, the new chief justice is required to do justice to restore the honour of judiciary in the eyes of people.
Abolition of the 21st amendment, especially military courts, is another headache for the new chief justice. The military tribunalswere established two years ago, following APS attack. Pakistan has civil anti-terrorism courts for hardcore terrorists which were established under anti-terrorism act 1997. Despite the civil courts, the amendment empowers the military courts to handle all those cases which are related to terrorism activities. Legal fraternity and civil societies have many reservations about the courts and term them a parallel judicial system to the civil courts. The military courts are established for two years and will come to an end on January 7, 2017. Pakistan parliamentarians are still mum over the issue whether they will extend the amendment further or not but it’s the matter of consultation among the three stakeholders like parliament, judiciary and GHQ. So, the new chief justice may keep in view the exigencies of justice and honour of the judiciary while giving any input/verdict about future of the military courts.
Judges’ appointment in higher judiciary is also a serious question as appointment for the honourable posts are not free from influences and other malpractices. The appointments in higher courts are made by the judicial commission and a parliamentary committee. The judicial commission was established under the 18th amendment to 1973 constitution of Pakistan to make the appointments nonpolitical, free and fair of any influence. The commission seems to have failed as the appointment of Ashraf Jahan Jamali, wife of Chief Justice of Pakistan Anwar Zaheer Jamali, as a judge of Federal Shariat Court is interpreted as and has been challenged in the Lahore High Court for being in violation of the Constitution. According to the petitioners, she was appointed as additional judge of Sindh High Court in 2013 in violation of merit as without approval of Parliamentary Committee for judges’ appointment. Allegations of favouritism in the “Arsalan case” were also heard in the corridors of justice and bars. Such unfair appointments and favoritisms in the higher judiciary are not only violation of the rule of law but constitution as well. Favouritism and other malpractices in judiciary create grudges among judges which are prejudicial to the morale of the judiciary. The new chief justice needs to take abold step against the malpractices in the judiciary to make it exemplary and, the epicentre for justice.
Delaying(ed) Justice and a backlog of cases are also major flaws in both civil and criminal judicial system. Effective criminal and civil justice system give us a guarantee of the rule of law. The delivery of effective justice requires that the system is accessible and affordable, free of discrimination, free of corruption, and without improper influence by public officials. The delivery of effective justice also necessitates that court proceedings are conducted promptly and not subject to unreasonable delays. Recently Muhammad Anar and Mazhar Farooq have been acquitted by August court after (respectively) 24 and 11 years’ imprisonment as the court could not find out any factualpieces of evidence to declare them guilty. The system is unable to quickly redress the grievances of aggrieved parties and to round rapidly all those who commit a crime. According to data collected until Nov. 15, 2016, by the Law and Justice Commission of Pakistan, among the 1,954,868 court cases countrywide, 1,274,310 are pending with Punjab’s district judiciary, 121,180 with Sindh, 188,561 with Khyber Pakhtunkhwa, 13,882 with Balochistan’s district courts and 31,018 cases remain unresolved with the district judiciary of Islamabad to date. Likewise, the pending cases in the apex Supreme Court (SC) are estimated at 30,970 whereas the pendency in the Federal Shariat Court (FSC) is 661. Such rush of cases at district and higher level are very lamentable, and they need the alert attention of the new chief justice to find out a solution of the delayed judicial system. Speedy justice is the right of every citizen.
At last but certainly not least, active accountability process of the judiciary is also much more important because it makes the judges liable and prevents them from misconduct, corruption and other illegal and/or immoral activities. Recently, many critics, especially lawyers’ fraternity, have raised many questions over the judge’s accountability in higher judiciary. Such accusations and grievances over judiciary shall be countered through active supreme judicial council which is the foremost duty of the incoming chief justice to do it. In a nutshell, the new honourableChiefJusticeSaqib Nisar may fully consume his energy for the betterment of the judiciary by taking out all those flaws which create hurdles in the way of justice. He should work hard to make the judiciary exemplary for justice and fair and speedy proceedings.
The writer is a law student at Islamia College University, Peshawar and can be reached at [email protected]