Mat­ters of jus­tice

The Pak Banker - - FRONT PAGE -

In a re­cent ad­dress, Chief Jus­tice of Pak­istanSaqibNisar high­lighted the prob­lems of the ju­di­cial sys­tem. He also crit­i­cized judges' in­com­pe­tence and fail­ure to ful­fill their re­spon­si­bil­i­ties, thereby caus­ing un­ac­cept­able de­lays in the dis­pen­sa­tion of jus­tice. Adding an­other di­men­sion to his charge, the CJP re­vealed that each judge cost the ex­che­quer Rs 55,000 per day and ques­tioned whether judges could jus­tify their hefty salaries. He com­plained that judges keep cases lin­ger­ing on in­stead of de­cid­ing them, paving the way for such in­com­pe­tent judges to join hands with lawyers in ex­ploit­ing the poor lit­i­gants. He can­didly ad­mit­ted that the on­go­ing crit­i­cism of the ju­di­ciary was jus­ti­fied to some ex­tent.

The Chief Jus­tice called on the ju­di­ciary to do some soul search­ing and in­tro­spect on stream­lin­ing the ju­di­cial sys­tem while work­ing tire­lessly to give the ju­di­ciary its right­ful dig­ni­fied sta­tus. In par­tic­u­lar, the CJP pointed to in­or­di­nate de­lays in cases be­cause of de­layed hear­ings, re­peated ad­journ­ments, etc., which left cit­i­zens wait­ing in­ter­minably for jus­tice. As part of the stream­lin­ing, the CJP pointed out that sev­eral nine­teenth cen­tury civil laws had be­come out­dated and did not an­swer to the needs of mod­ern so­ci­ety. The CJP re­gret­ted that he was un­able to find so­lu­tions to is­sues taken no­tice of. In the case of the miss­ing per­sons, the CJP pointed to his un­prece­dented step of sum­mon­ing all the heads of the mil­i­tary and civil in­tel­li­gence agen­cies and se­cu­rity forces and in­struct­ing them to file af­fi­davits re­gard­ing the miss­ing per­sons so that they could be pro­ceeded against if their af­fi­davits were proved wrong. Mu­ti­lated bod­ies of miss­ing per­sons were de­scribed by the CJP as ex­tra­ju­di­cial killings, a prac­tice with­out any jus­ti­fi­ca­tion in our laws or in the civilised world.

Noth­ing that the Chief Jus­tice has said is new or un­known gen­er­ally to the pub­lic. Ad­mit­tedly, the old adage of bet­ter late than never ap­plies, but lit­tle has been done over the years to tackle the moun­tain of pend­ing cases in our jus­tice sys­tem, with the Supreme Court alone groan­ing un­der the bur­den of some 40,000 pend­ing cases. Had the CJP paid more at­ten­tion to this prob­lem in­stead of what the crit­ics call try­ing to fix ev­ery­thing in state and so­ci­ety and end­ing up fix­ing noth­ing, things may not have reached such a pass. The crit­ics of our ju­rispru­dence of re­cent years ( since the restora­tion of the ju­di­ciary as a re­sult of the lawyers' move­ment) also point to the ex­ces­sive use of suo­motu pow­ers that de­prive lit­i­gants of the es­tab­lished tiers of the jus­tice sys­tem that pro­vide for ap­peals from lower court judge­ments to higher courts.

The Supreme Court also takes suo­moto no­tice of mat­ters of pub­lic in­ter­est. The un­der­ly­ing mo­ti­va­tion, which the CJP al­luded to in his re­marks, is to en­sure the fun­da­men­tal rights of the peo­ple un­der Ar­ti­cle 184( 3). But the prob­lem with this for­mu­la­tion is that fun­da­men­tal rights are such a broad cat­e­gory that there are few lim­its on the courts' in­ter­ven­tion if the def­i­ni­tion is taken lit­er­ally. In the process, as the ex­pe­ri­ence of the re­cent past in­di­cates, well in­ten­tioned ju­di­cial in­ter­ven­tions of­ten end up en­croach­ing on the do­main of the ex­ec­u­tive and even par­lia­ment, thereby weak­en­ing and erod­ing the sep­a­ra­tion of pow­ers that is fun­da­men­tal to our con­sti­tu­tional con­struct. Ju­di­cial ac­tivism in the re­cent past needs to re­flect on the lim­its it has dis­cov­ered in prac­tice on the abil­ity of the ju­di­ciary to in­ter­vene in any and all sit­u­a­tions on the plea of fun­da­men­tal rights and cor­rect per­ceived wrongs. The CJP him­self has sought to de­fine con­tours on ex­er­cise of such pow­ers by the court and the court is ex­pected to ad­dress this is­sue soon.

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