Matters of justice
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 As part of the streamlining, the CJP pointed out that several nineteenth century civil laws had become outdated and did not answer to the needs of modern society.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.