CJP’s concerns
In his speech at
the opening ceremony of the new judicial year 2019-20 on September 11, 2019,
Chief Justice of Pakistan (CJP) Asif Saeed Khosa made some pertinent and
thought provoking comments on national affairs. First and foremost, the CJP
warned that the growing dangerous perception of the ongoing (lopsided)
accountability process being seen as part of political engineering (with which
we are all too familiar in our history) needs urgent remedial action if the
whole accountability regime is not to lose all semblance of credibility. The
CJP went on to underline that the bench and the bar together would resist with
their fullest might any attempt from any quarter to damage or destroy the ideals
of constitutionalism, rule of law and democracy. In recent times, the
leadership of the bar has repeatedly voiced concern over the receding political
space in the governance of the state. Such concerns, the CJP emphasised, cannot
be ignored as they may not augur well for the future of constitutional democracy.
Recovery of stolen wealth, he said, was a noble cause but if in the process
constitutional and legal morality and recognized standards of fairness and
impartiality are compromised, this loss may pose an even bigger challenge in
future. The CJP referred to the voices being raised against muzzling of the
print and electronic media and suppression of dissent, and argued that a voice
suppressed or an opinion curbed generates frustration and discontent, which
could pose a threat to the democratic system. The CJP was not expected to, nor
did he go into whether the current dispensation answers to the description of a
legitimate democracy. He may, had he chosen to do so, have answered the
question why these repressive trends are in evidence today. On the issue of the
references before the Supreme Judicial Council (SJC) against Justices Qazi Faez
Isa and K K Agha, the CJP set the record straight by delineating the record of
such references before the SJC, their disposal, and the pendency of some
references (especially these two) that have been challenged in the Supreme
Court. The leitmotif of his court, the CJP said, was not judicial activism
(that had become the norm since former CJP Iftikhar Mohammad Chaudhry’s tenure)
but active judicialism (whose meaning is not clear, nor did the CJP attempt to
explicate it beyond question). Significantly, in the context of judicial
activism, the CJP mused that the very people who were agitated in the past by
the use of suo motu powers by the superior courts were today complaining about
its non-use or restraint in this regard by the present courts. He explained
that suo motu powers should only be used, and that too with the utmost
restraint confining it to issues of national importance, in the light of
Article 184(3), not on some interested party’s demand. The CJP expressed regret
that his suggestions for a three-tier judicial system that does away with
special courts, amending or repealing unnecessary and problematic laws and an
inter-institutional dialogue on these and other issues had yet to be given
attention by the government. Last but not least, the CJP reminded us of the
unresolved issue of missing persons.
While all that
CJP Asif Saeed Khosa said in his address points to the flaws and inadequacies
of our judicial and other systems, it may be commented that the CJP has
expressed himself rather late on these issues, a bare three months before he is
due to retire. However, it could be said that in this case too, better late
than never. The superior judiciary too has much to answer for in our history,
including serving at times as the handmaiden of martial laws, dictatorship and
anti-democratic dispensations. If a fresh wind is now blowing through the
hallowed halls of justice as reflected in CJP Khosa’s remarks, we hope this is
not a straw in that wind but rather will become the philosophy and moving
spirit of the judicial system, a development that would have a positive impact
on our democracy too.
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