Business Recorder Editorial January 21, 2019

Here comes ‘poetic Justice’ Khosa

Former Chief Justice of Pakistan (CJP) Mian Saqib Nisar doffed his robes on January 17 and his successor, Justice Asif Saeed Khosa, was sworn in as the 26^th CJP on January 19. With this change of guard at the apex of the country’s superior judiciary, ex-CJP Mian Saqib Nisar’s tumultuous two-year tenure seemed to be attended by the bursting of the dam of resentments and reservations about the Supreme Court’s (SC’s) jurisprudence under him. Adverse comment and criticism of ex-CJP Mian Saqib Nisar’s judicial activism and perceived judicial overreach flooded the mainstream and social media. It is a measure of the strength of this feeling that critics held their silence while he was in office, but felt emboldened to relieve themselves of pent up frustration as soon as he was gone. As to the legacy of the Nisar court, let it be noted that as a judge of the Lahore High Court, Justice Nisar penned solid judgements advocating judicial restraint and displeasure at ex-CJP Iftikhar Mohammad Chaudhry’s judicial activism. Yet when he ascended to the august office of CJP, Mian Saqib Nisar seemed to throw all caution to the winds and far exceeded the very excess by the Chaudhry court that he had earlier decried. Not only were suo motu notices almost daily affairs, upending decades of Pakistan’s jurisprudence in which the original jurisdiction of the SC was used all too sparingly and by way of exception, Mian Saqib Nisar’s interpretation of Article 184(3) of the Constitution enlarged the scope of judicial intervention in matters pertaining to fundamental rights to a degree where virtually nothing was beyond its scope. His muscling into the remit of the executive and even parliament eroded the trichotomy of power that is at the heart of the Constitution. The provinces, hospitals, schools, virtually anything that caught the former CJP’s eye could not escape his by now famous wrath. His behaviour on the bench with lawyers, litigants, accused and members of the bureaucracy bordered on rudeness and insult. The very power bestowed upon his person by the high office required sobriety, patience, politeness and fairness. Instead even independent opinion or argument brought the wrath of possible contempt of court on the heads of those who dared to question his seemingly infallible wisdom. The high courts were treated as virtual subordinate courts whereas they are independent of dictation by the apex court, so much so that the former CJP went so far as to order the high court benches’ formation, a power only the chief justices of the high courts enjoy. Intervention in cases being heard by the high courts was one more ‘innovation’ to the credit of the former CJP. District courts’ inspection, an act beyond the scope of the SC and whose supervision resides in the high courts, led in one unforgettable incident in insult in his courtroom of a district court judge who subsequently resigned because of the humiliation. Last but certainly not least, when as a member of a SC bench hearing a case in the Peshawar registry of the SC, Justice Qazi Faez Isa asked during the hearing whether Article 184(3) could be applied in the instant case, ex-CJP Nisar abruptly reconstituted the bench, a patently unconstitutional and illegal act unless the bench breaks up of its own accord because of a judge recusing himself. Justice Mansoor Ali Shah, a member of the same bench, has written a note on this incident labelling it as an act usurping judicial independence. Ex-CJP Nisar decided one day to ‘rescue’ Pakistan from water scarcity by announcing a dams fund, leading in some cases to remarks to the effect that those charged could hope for lenient treatment if they contributed to the fund. It is difficult to comprehend this plethora of objectionable precedents set by the Nisar court except to regard it as publicity-seeking with a vengeance.

Whatever history may say about his person, the damage done to the institution of the superior judiciary by these aberrations will take time to undo. A hopeful note has been struck by incoming CJP Asif Saeed Khosa in declaring a reorientation of the SC’s jurisprudence towards traditional judicial restraint, sparing use of Article 184(3) and suo motu powers except in cases where no other remedy lies, and, perhaps most important and a neglected area under Mian Saqib Nisar, reform of the judicial system to tackle its pendency crisis of some two million cases. CJP Khosa, who is widely known as a ‘poetic Justice’ for his habit of citing works of literature in his judgements, has also wisely called for an inter-institutional dialogue to mitigate the frictions between state institutions that may have arisen as a consequence of Nisar’s extraordinary overreach. Ironically, while welcoming the proposal, Information Minister Fawad Chaudhry has once again in his inimitable style queered the pitch by excluding the opposition from such a dialogue, not realising that the political system too, accountability notwithstanding, is in crying need of some modicum of reconciliation and normalisation if the country is to prosper.