At the 9th International Judicial Conference held in Islamabad, Justice Qazi Faez Isa asked the participants if anybody was satisfied with the performance of our justice system. No one from the participants answered in the affirmative. The challenge now lies before him to improve this key metric as he takes office as the 29th Chief Justice of Pakistan. Will Chief Justice Isa be able to reform our justice system?
He will be confronted with three main issues: first, a deep divide amongst Supreme Court judges; second, a disregard for the rule of law, the Constitution, and fundamental rights amongst certain elites (Pakistan ranks 129 out of 140 in the Rule of Law Index of the World Justice Project 2022); and, third, a pendency of more than five million cases as well as increasing litigation, both frivolous and unfrivolous.
First, the divide between the SC judges is seemingly rooted in disagreements regarding the judicial reference filed against Justice Isa in 2019 as well as disagreements regarding the procedure for appointing SC judges. Though both the initial reference and a curative review reference against Justice Isa were dismissed by the SC, it might have left deep imprints upon his mind and soul; how will he move forward in the interest of his institution and the nation? On becoming the new CJP, he may call a full court meeting to begin the difficult task of working through the differences among his colleagues so as to develop a modus operandi that will strengthen, not weaken, the Court. He might also evolve more transparent and merit-based criteria for the appointment of superior court judges.
Second, Justice Isa has been a flag bearer for promoting constitutionalism and fundamental rights in Pakistan. This is important in a context where the SC's order to hold elections for the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa within 90 days after their dissolution, as prescribed in the constitution, was not implemented. There is also a perception that the constitutional timeframe for elections to the National Assembly may be delayed. When freedom of expression is unreasonably curtailed, and those who dissent from the powers often face unlawful harassment, arrest, or a denial of due process (i.e., trial through military courts), the response of the new CJP will reflect upon the independence of the judiciary, the rule of law, and the fundamental rights of our people.
Third, it is perceived by ordinary citizens that the Supreme Court is essentially an elite institution serving the needs of elites—for example, fast-tracking their cases for speedy hearings and quick disposal whilst the cases of the poor are treated randomly. There are no objective criteria for the fixation of all types of cases. Sometimes people die in prison before criminal appeals are decided by the Supreme Court. And, whilst thousands of new cases are filed each year even without valid legal pleas and substance, there is no system to assess their legal merits. It adds to the workload of the Supreme Court and chokes the judicial system. How will the new CJP enable the apex court to resolve the disputes of around 250 million people?
The new CJP must strengthen the operation, and reputation, of the Supreme Court. The Supreme Court of Pakistan must prioritize the prompt resolution of cases involving ordinary citizens, restoring the trust of the people. The Federal and Provincial Governments must implement orders of the Supreme Court in letter and spirit. There must be an audit of judgments and the accountability of judges promoting the quality of jurisprudence and justice. The administrative responsibility such as the Registrar of the Supreme Court, should be assigned to a member of the judiciary to reduce the alleged interference by the executive. A better mechanism for suo motu notices and the formation of benches must be developed. Hearing of cases through video link and alternative means of dispute resolution must be increased to curtail delays. An efficient justice system will enforce contracts to attract foreign investment and boost our ailing economy. It is high time that all stakeholders dedicate themselves to justice-sector reforms that respect our Constitution and the rights of our people.