Malice Towards None & All: Challenges Before The New CJP

Pakistan's justice system remains painfully unproductive and marred with inefficiency. The apex court has also recently been in conflict with all other state institutions. The great challenge before Justice Isa as CJP will be to restore the balance.

Malice Towards None & All: Challenges Before The New CJP

“The Twenty-First Amendment to the Constitution, which enabled the trial of civilians by military courts, was challenged in the case of District Bar Association, Rawalpindi v Federation of Pakistan (PLD 2015 Supreme Court 410, at 1158-1209). Justice Isa wrote a powerful dissent expressing his opinion that such trials did not accord with the Constitution”—profile of Justice Qazi Faez Isa at the website of Supreme Court of Pakistan

“…the superior courts would not be burdened with litigation if the institution functions strictly in accordance with the Constitution and the law, since issues would then get resolved by institutions itself”— Outgoing Chief Justice, Umar Ata Bandial while addressing farewell dinner hosted in his honour by the Supreme Court Bar Association

“Chief Justice-designate Qazi Faez Isa was not present during the speeches at the farewell dinner, but arrived shortly after they concluded. When asked why he came late, he explained during a casual conversation with lawyers that since the SCBA was one of the many petitioners, and their petitions were pending before the apex court, it was not appropriate for him to be present while speeches were being made”—Press report, September 14, 2023 

With the oath of the 29th Chief Justice of Pakistan scheduled for September 17, 2023 by Justice Qazi Faez Isa after the retirement of Chief Justice Umar Ata Bandial, there are expectations in all circles that the era of “judicial activism” will come to an end.

However, many believe that more significantly, Qazi Isa, being a “pro-people judge”, will not only enforce fundamental rights and rule of law, but also undertake much-needed reforms to revamp the rotten and outmoded judicial system as he has in-depth knowledge of maladies faced by it and possesses the desire to remove the same.

While the controversies and debates over the role and legacy of the outgoing Chief Justice Umar Ata Bandial would continue, it is the time that the new Chief Justice of Pakistan (CJP) initiates long-delayed fundamental reforms in the existing judicial system. His profile on the website of the Supreme Court mentions: “Justice Isa’s judgments reflect a strong desire to adhere to the Constitution and the rule of law, and to safeguard public interest.”

With the change of command at the apex court, there is enthusiasm in the public, especially in the legal fraternity, for this marks an end to the era of undue intervention in civil-military administrative affairs and the political arena. Many hope that Justice Isa, known as a “firm and gentle judge” for his knowledge and mild manners, would maintain a focus on citizens’ rights while “steering clear of intervening in government policy”.

Unlike his predecessors, Justice Isa, many hope, will avoid the high-profile political cases. He as Chief Justice of Pakistan would prefer “judicial vigilance” over “judicial populism.” Due to disturbing this delicate balance, some chief justices of the Supreme Court in the past diminished people’s confidence in the judiciary. It is going to be a great challenge for Justice Isa as the new CJP to restore it.

Our existing judicial system, dating back to the colonial era, has not changed except for the adverse patchwork of so-called Islamic laws and establishment of Federal Shariat Court by General Ziaul Haq. Two conflicting legal systems have not served any useful purpose for the dispensation of justice and the maxim ‘justice delayed is justice denied’ most aptly describes the essence of our prevalent judicial system.

On August 14, 1947, we inherited a strong and independent judiciary, having unquestionable reputation of competence and integrity. Mian Abdul Rashid, the first Chief Justice of Pakistan, was a man of unimpeachable character, who restrained from attending government gatherings and public functions. His successor, Justice Muhammad Munir, for his judgements in the Maulvi Tamizuddin case [PLD 1955 Federal Court 240] and few others, did become controversial, though his critics seldom realise that it was actually the failure of the political elite that paved the way for recurrent unconstitutional rules for which the judiciary alone could not be blamed.

One cannot, however, forget some of his great successors like Justice Shahabuddin and Justice A.R. Cornelius, who demonstrated high standards of judicial conduct, even in the earlier tumultuous years of our political history.

In the post-independence years, the dilemma of our judiciary remained perpetual failure of political leadership as it was approached many a times to determine the validity or otherwise of capturing State power by the men in uniform.

In The State v Dosso [PLD 1958 SC 533], Chief Justice Muhammad Munir called it a “successful revolution”, but Justice Hamoodur Rehman in Asma Jillani v Government of Punjab [PLD 1972 Sc 139] called it a “usurpation” of people’s rights. In Begum Nusrat Bhutto v Chief of Army Staff [PLD 1977 SC 657] came yet another endorsement of the doctrine of necessity, wherein “intervention” was declared lawful “in the best and larger interest of the nation.

Late General Pervez Musharraf not only got three years, but also the right to amend the Constitution! However, defiance and an emphatic no by Chief Justice Justice Iftikhar Muhammad Chaudhry to the same Musharraf changed the entire judicial landscape.

For judiciary, November 3, 2007 was the beginning of a new era. A dictator imposed judiciary-specific martial law—this time, the victims were not politicians, but the judges. For the first time, it was the issue of survival for those who always sided with men in khaki against politicians.

The effectiveness of people’s street power that reigned from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009—culminated in the second restitution of Iftikhar Muhammad Chaudhry as the CJP on March 22, 2009. As March 16, 2009 brought “justice” for Iftikhar Muhammad Chaudhry, the Supreme Court as an institution conveyed a change of mind in its decision of July 31, 2009 as under:

“Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; wherein the independence of judiciary shall be fully secured. While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths”.

The spirit of the above judgement later reflected in clause (2A) of Article 6 of Constitution, inserted through 18th Amendment:  “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.”

The above judgement highlighted the real dilemma faced by Pakistan since its existence—a daunting challenge of establishing a true democratic polity based on constitutional supremacy, rule of law and equity. Long eras of military rule—backed by foreign masters—and in between experiments of “controlled democracy” denied the people of Pakistan their sovereign right to self-governance, for which a long struggle was waged to secure independence from the British raj. Dictatorial rules stifled all State organs—especially the judiciary, that became an approving, legitimizing arm for many unconstitutional rules.

The Supreme Court, after restitution of Iftikhar Muhammad Chaudhry as CJP, started taking up many cases, some using suo muto powers, causing panic in many circles. Political polarization diluted valiant common struggles waged by all segments of society, most notably by lawyers, media, social and political activists, for restoration of an independent judiciary. 

The Pakistan Peoples’ Party government alleged that the apex court was transgressing its constitutionally-defined limits. Chief Justice Iftikhar Muhammad Chaudhry said that if people were not getting their rights, the judiciary was bound to be proactive.    

It is an undeniable fact that in the post-March 16, 2009 scenario, the judiciary under Chief Justice Iftikhar Muhammad Chaudhry and all the CJPs thereafter failed to deliver to the people, as no reform agenda was implemented to remove snags in the dispensation of justice. The justice system remains hopelessly redundant, painfully unproductive and marred with inefficiency and inordinate delays. Since March 2009, the apex court is in conflict with all other state institutions. There will be a great challenge before Justice Isa as CJP—his will retire on October 25, 2024—to restore the “balance.” The real goal should be to make the judicial system capable of delivering justice without delays and heavy costs to litigants.   

No doubt, the apex court and higher courts are constitutionally obliged to curtail arbitrary exercise of powers by any organ of the State, as their main role is protection of fundamental rights of citizens under all circumstances. It should remain their first and foremost duty. While maintaining the supremacy of Constitution, a sanctimonious document representing and expressing the supreme will of the people, the court should also ensure quick disposal of conflicts pending with them.

Tragically, our courts are still following the outdated procedures and methods whereas many countries have adopted electronic and digital systems for filing of cases and their quick disposal through fast-track follow ups using the offices of magistrates at grass root levels. The main aim of judicial reforms should be the elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, there would be no need for enormous litigation.

It is shameful that presently, the government is the main litigant. It usurps the rights of people and then drags poor citizens to the courts. First of all, the apex court under a new CJP should establish a commission to determine the reasons for this morbid state of affairs. The principles underlying reforms in the justice system should not mean forcing unnecessary litigation and then its quick disposal, but to help reduce its occurrence in the first instance.

The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE)