Seventy-eight years ago, the Luftwaffe of the Third Reich (the German Air Force) began bombing London. At a time when Sir Winston Leonard Spencer-Churchill, the then prime minister of the United Kingdom, was being briefed on the casualties and economic collapse, he asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.” He was right on the money to exude the confidence to win the war because the societies where justice prevails do have an inbuilt ability in their systems of governance to ward off dangers facing them, and emerge triumphant.
In any society, administration and dispensation of justice should be the topmost priority. A society without a sound, reliable and speedy judicial system, which does not ensure effective dispensation of justice, cannot progress. Moreover, it must also be remembered that justice means adjudication by the courts strictly in accordance with the law and the constitution without allowing subjective considerations to influence the ultimate verdicts. Judiciary is the most sanctimonious institution and the justice dispensed by it strengthens the edifice of the state. However, if we look at the history of judiciary in Pakistan there are very few bright spots we can really be proud of. A brief history of Pakistan provides numerous examples of times when the judiciary played second fiddle to the forces that governed the state at the time. This brief history can perhaps begin to educate us on what went wrong in the past and what we can learn from our mistakes.
After partition in 1947, the need for state machinery was conspicuous by its absence. Less than fifty percent of the vacancies in the judicial and executive branches of the government were occupied and most state departments remained underemployed. The loss of Quaid-e-Azam and Liaquat Ali Khan in the earlier years of Pakistan’s life further estranged any hope for ‘state-building’. The political vacuum created by the demise of the two great leaders set the stage for a tussle over power between the legislature and the executive. This proved disastrous for the growth of government institutions, especially the judiciary, which was merely used as a tool to exploit intra-government disputes between the executive and the legislative authorities. As a result, the constitution – a document, supposedly safeguarded by the judiciary – was reduced in its worth to facilitate power bargains.
Read More: Rebirth of Judiciary
1. In 1954, owing to a sheer lack of consensus among parliamentarians over the contents of the constitution, Governor General Malik Ghulam Muhammad dismissed the Constituent Assembly, and the Supreme Court upheld his decision.
2. During Ayub Khan’s tenure, a large number of political leaders were barred from competing elections and more importantly, the National Assembly no longer had the power to remove a government it didn’t have confidence in. Again, the judiciary complied.
3. In 1973, Bhutto promulgated a new constitution and became the omnipotent prime minister. He prescribed 114 articles of power to the federation; the legislature grew in size and the power of the executive branch was reduced. Three hundred and thirty-three senior bureaucrats were dismissed on false charges. Judiciary took no action.
4. In 1985, General Zia shifted power once more: he made the 8th Constitutional Amendment, changing Pakistan’s political system from parliamentary to semi-presidential. The President was given the right to dissolve the National Assembly. Yet again, the judiciary complied.
5. And then the Nawaz government undid the 8th Amendment in 1997. The 13th Amendment removed article 58(2)(b) from the constitution and withdrew the President’s right to dissolve the National Assembly. Soon afterwards, the 14th Amendment was passed which stripped the party of its power to remove its leader in case of ‘no confidence’. Nawaz Sharif became a parliamentary dictator – there were no checks and balances left on the Prime Minister. Judiciary’s response was an intriguing silence.
Both military and civilian governments in Pakistan have almost invariably manoeuvred the judiciary to purchase legitimacy for their unlawful actions. Under borrowed legitimacy, military governments justify martial law at the cost of losing upright superior court judges. Conversely, civilian governments have often used their clout to meet political exigencies and centralize power. Hence, the need for greater judicial independence cannot be denied.
Judicial Activism vs. Judicial Restraint
Judicial activism is an aspect of judicial decision-making, whereby judges allow their personal views on public policy, among other areas, to guide their decisions. The judiciary in Pakistan, especially after it was restored in 2009, seems to have given thought to the definition of the 19th-century German theologian and writer David Strauss. In his opinion, judicial activism consists in one or more of three possible actions including overturning laws as unconstitutional, overturning judicial precedent and ruling against a preferred interpretation of the constitution.
In Pakistan, since the restoration of judiciary in 2009, the pendulum has swung from one extreme of judicial passivism to the other extreme of judicial activism. After four long years of judicial activism under former chief justice Iftikhar Muhammad Chaudhry, his two successors adopted a policy of judicial restraint, with an enhanced focus on deciding the chronic backlog of low-profile cases – a policy widely supported by the legal fraternity.
From March 2009 till the end of 2013, judicial activism was marred by frequent confrontations between the superior judiciary and other state institutions – including the executive, the legislature, the Election Commission and other government departments. In an era dominated by the judiciary-spurred media frenzy about high-profile contempt cases against politicians, judges, bureaucrats and journalists, while proceedings in cases of ordinary citizens were severely affected.
Yet in 2014, chief justices Tassaduq Hussain Jillani and Nasirul Mulk turned a new leaf by refusing to interfere in politics, governance and economic policymaking – largely a purview of other state institutions.
However, in 2017, the Panama Papers scandal gave another surge to judicial activism in Pakistan.
Judicial restraint, being a rule of interpretation, requires judges to restrict and limit their own power (of judicial review) and to be hesitant to strike down laws, unless they are utterly unconstitutional, and to exercise temperance in interfering with the executive’s affairs. This philosophy is evident in the way the Supreme Court of Pakistan is seen to discharge its judicial functions. It has used its powers of suo motu and judicial review. This new approach to dealing with matters related to public policy in Pakistan has received a divided response from media, civil society and politicians.
In fact, supporters of judicial restraint believe that judicial activism does not find space in the scheme of separation of powers under the constitution. They say that judicial activism, taken up so frequently by the media, has become routine, and common litigation is more an exception than a norm. They term these as judicial interference in the executive domain and as negating the tenets of a fair trial.
On the other hand, defenders of judicial activism applaud the courts for breaking with the cold approach of judicial restraint. While defending the judiciary they cite the inability of the government and poor governance as reasons for judicial interference.
Need for Reforms
The problem with judicial activism lies in what may be perceived as the judges’ personal views on public policy. There is a danger that sometimes judges, being human, may miss the fine line dividing interpretation and the rewriting of laws. This has resulted in unease and that is why the superior judiciary, despite the positive aspects of its rulings, has not been able to avoid criticism as some political parties may see this activism as unwarranted and unnecessary interference in the administrative and economic affairs of the state.
Hence, administration and dispensation of justice under various laws in Pakistan need serious attention – there is a consensus that the entire justice system is at the brink of collapse. There is an urgent need to ensure justice for all, rule of law, fairness, equity and independence of judiciary.
We need comprehensive reforms to remove snags in the dispensation of justice. Our judicial system is marred with inefficiency and inordinate delays. Great challenges lie ahead for the upcoming chief justice to overhaul the entire judicial system and make it efficient. Tragically, our courts are still following outdated procedures and methods whereas many countries have adopted an e-system for filing cases and ensuring their quick disposal through a fast-track follow up, using the offices of magistrates at the grassroots levels.
The main aim of judicial reforms should be to eliminate unnecessary litigation and facilitate the smooth running of affairs between the state and its citizens. Once both learn to act within the four corners of the law, there would be no need for enormous litigation.
It is equally painful that the government is the main litigant. It usurps the rights of people and then drags the poor citizens into court. It is hoped that the apex court under the new chief justice will establish a commission to determine the reasons for this morbid state of affairs and rectify the situation. The main purpose of judicial reforms should be to end unnecessary litigation. For this, all three pillars of the state – the legislature, executive and the judiciary – will have to work together.
It is vital for the success of judicial reform strategy to go for a paradigm shift rather than patchwork or some changes here and there. The system must be forward-looking and supportive of the modern-day needs. The Supreme Court should establish a commission to determine the reasons for this sorry state of affairs. The principles underlying reforms should not mean forcing unnecessary litigation and then its quick disposal but to help reduce its occurrence.
Justice Asif Saeed Khan Khosa, The Next Chief Justice of Pakistan
Chief Justice Mian Saqib Nisar is going to retire on January 16, 2019, after attaining the superannuation age of 65. After him, Justice Asif Saeed Khan Khosa will come in to serve as top judge for almost 11 months. He will superannuate on December 20, 2019.
Born on December 21, 1954 in Dera Ghazi Khan, Justice Asif Saeed Khan Khosa, completed his undergraduate and master’s degree from University of Punjab. Later, he went to the United Kingdom for further education in law. He obtained an LLM Degree from the University of Cambridge. He served as an advocate in the Lahore high Court and Supreme Court of Pakistan before being elevated to the position of a Judge at the Supreme Court of Pakistan.
Justice Khosa’s is well known for literary flair and is fond of quoting great literary figures in his judgements. For instance, while delivering the verdict in the famous case against Aasia Bibi, he quoted William Shakespeare in his additional notes thus:
“It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, ‘more sinned against than sinning.’”
Earlier, when Panama Case verdict was announced, Justice Khosa used the reference of 1969 novel The Godfather by Mario Puzzo. He started off by writing:
The popular 1969 novel ‘The Godfather’ by Mario Puzo recounted the violent tale of a Mafia family and the epigraph selected by the author was fascinating:
Behind every great fortune there is a crime. — Balzac
The novel was a popular sensation which was made into an acclaimed film. It is believed that this epigraph was inspired by a sentence that was written by Honoré de Balzac and its original version in French reads as follows:
Le secret des grandes fortunes sans cause apparent est un crime oublié, parce qu’il a été proprement fait.
(The secret of a great success for which you are at a loss to account is a crime that has never been found out, because it was properly executed)
It is ironical and a sheer coincidence that the present case revolves around that very sentence attributed to Balzac …
In 2012, while announcing the verdict against then prime minister Yousaf Raza Gilani in a contempt of court case, he adapted Khalil Jibran’s poem Pity thy Nation in his verdict. “In the context of the case in hand I am reminded of the following unforgettable words of Khalil Gibran that paint a picture which unfortunately appears quite familiar:
Pity the nation
that is full of beliefs and empty of religion.
Pity the nation
that wears a cloth it does not weave,
eats a bread it does not harvest,
and drinks a wine that flows not from its own wine-press.”