In the summer of 2010, I had the privilege of observing the proceedings of a 17-member bench of the honorable Supreme Court of Pakistan, during the initial challenge to the 18th Constitutional Amendment. At a particular point, one Mr. Shahid Orakzai, during the course of his arguments, raised the Holy Quran in one hand, and the Constitution of Pakistan in the other; theatrically, Mr. Orakzai declared that the time had come for the honorable Court to pick one out of these two books… and to “discard” the other. And just the like that, Mr. Orakzai let go of the Constitution of Pakistan, which fell to the floor with an exaggerated thud.
Everyone remained silent – all the honorable judges and the members of the legal fraternity. I imagined that, any moment, the gallery would burst into spontaneous applause.
But then, something incredible happened: Justice Mian Saqib Nisar (one of the junior judges of the honorable Supreme Court at the time), thundered from his seat, at the extreme left of the bench: “How dare you throw the Constitution of Pakistan onto the floor, in the premises of Court Room No. 1!” Justice Nisar – and only he – proceeded to issue a contempt notice to the Mr. Orakzai, who later apologized and was excused by the then Chief Justice Iftikhar Chaudhary.
Till date, this remains my fondest memory of a Supreme Court proceeding.
Yesterday, Mr. Justice Nisar took oath as the Chief Justice of Pakistan. And his elevation, to the highest seat of justice in our land, brings with it unprecedented hope as well as tremendous fears.
To begin with, there can be no cavil with the fact that CJ Nisar is a judge extraordinaire. Those who know him personally, those who have pleaded before him as a judge, and those familiar with his approach to jurisprudence, can all vouch for his patience, wisdom, and a keen gravitas that is befitting an individual who can be entrusted with the divine responsibility of doing justice among fellow citizens. His judgments over the past two decades – especially in civil, corporate and constitutional matters – have forged the arc of our modern jurisprudence. And his recent dissent in the challenge to the 21st Constitutional Amendment, which deconstructs and obliterates the idea of an unamendable Basic Structure, testifies to his courage and his faith in the promise of our democratic enterprise.
But judicial brilliance, alone, will not be sufficient to confront the many challenges that await the new Chief Justice. The real test for CJ Nisar, and his legacy, will be how he redeems our national faith in the (tainted) project of justice.
CJ Nisar inherits a Court that is torn between aspirations of grandeur, and the humble responsibilities of dispensing justice in accordance with law. On the one hand, there are those who see the court as the ‘fix all’ institution in our society; those who invite the Court to embrace the role of a ‘savior’, even if that means stepping outside the contours of black-letter law. On the other end of the spectrum is the belief that the honorable Court must jealously guard the precarious balance of constitutional separation of powers, instead of attempting to orchestrate revolutions from the bench. And CJ Nisar will have to walk this thin rope, all the while cognizant of the fact that he is being watched through the gaze of history.
While the ambit of judicial reforms is inexhaustible, a number of immediate steps await the new CJ’s attention.
To begin with, in order to restore people’s faith in our judicial system, concerted steps must be taken to minimize the procedural delays of litigation. In this regard, our outdated procedural laws must be revisited, and a deliberate three-tiered trial and appellate process be developed, with consequences for delay and frivolous litigation, so as to provide inexpensive justice within a calculable timeframe. Furthermore, renewed efforts must be made for better supervision of the subordinate courts, increased use of technology, and development of pre-trial procedures to alleviate unnecessary delays.
Away from procedural issues, the honorable Court must make efforts to nurture the development of meaningful jurisprudence at the trial stage. There is no reason why the trial process – at the criminal as well as civil side – continues to be mechanical in nature, with no new judicial ideas seeping into the trial judgments. All across the world, a large fraction of jurisprudence, especially concerning procedural and evidentiary matters, emanates from trial courts. Through a better training of judicial officers, our trial jurisprudence must be improved, so as to reduce the burden of the appellate courts.
Next, judiciary – especially in the district courts – must be protected against incursions of ‘wukulagardi’. CJ Nisar, with the help of the respective provincial HC judges and Bar Councils, must find a way rescue the bench from being held hostage by (certain members of) the bar. Events such as the locking of court premises and thrashing of district court judges, has caused immense damage to the prestige of law in our society. And impotence of the constitutional courts is part of why this hooliganism has persisted. Under the strong leadership of CJ Nisar, legal fraternity must be taken to task for its persistent tampering with the system of justice.
Also, the honorable Supreme Court must develop ascertainable contours for the exercise of its powers under Article 184(3) of the Constitution. There is no reason for the Court to be embroiled in controversy concerning why PTI’s petitions (against Panama Leaks) were initially rejected by the Registrar, only to be accepted later (under public pressure?). It is time that that the honorable Court ends the persisting suspense about what constitutes an issue of ‘public importance with reference to the enforcement of fundamental rights’, and lays down judicious criteria for the invocation of this power. This will infuse greater moral authority in judicial dictas, while also silencing criticism about the discriminatory use of such power, especially when it comes to adjudicating political questions.
While on the point, a greater sense of transparency and accountability must also be infused in the elevation and functioning of the superior judiciary. In this regard, a more transparent process of judicial nominations, under Article 175A, must be developed, so as to silence all allegations of bias and nepotism. And the Supreme Judicial Council, which currently serves no meaningful purpose, must dispose off the pending references, in a systematic manner, in order to ensure that “justice is manifestly seen to be done” in our land.
And perhaps most importantly, the new CJ must take measures to regain the constitutional ground that has (recently) been lost to the khaki establishment. Specifically, the responsibility entrusted to military courts – instituted as a temporary constitutional aberration – must revert to an empowered civilian judiciary that has the courage and tools to convict the scourge of terrorism, in a timely and efficient manner. For this purpose, the honorable Supreme Court, under its new leadership, must develop fresh standards of proof, evidentiary requirements and procedural contours, for trying militants that persistently escape the porous clutches of our existing criminal justice system.
Notwithstanding the enormity of problems, as CJ Nisar takes center stage in our judicial odyssey, there is reason for hope. His personal brilliance will find momentum in his colleagues; he has the wisdom and poise of Justice Asif Khosa on his side; he has the intrepid Justice Mansoor Ali Shah at the helm of affairs in Punjab, and the brilliant Justice Yahya Afridi as the new CJ of Peshawar. This kind of aligning of the stars has not taken place in recent judicial history. And it probably will not, for a long time, again.
This is a time for action, not speeches. It is a time for redemption, not promises. CJ Nisar would know – just by looking at his predecessor – that history is unforgiving of men who are content with simply passing the buck to the next in line. That this earth has swallowed the silent remains of many who were tentative in spirit. And when the spectacle and splendor of this momentary greatness is over, our judgment will be less a function of what we did, but instead of what we could have done.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: firstname.lastname@example.org, or Twitter: @Ch_SaadRasool
This article first published on The Nation