The knives were out for Pakistan Chief Justice Mian Saqib Nisar the day he retired and praise-singing for Justice Asif Saeed Khosa has started after he assumed the mantle. The former chief justice, who was lauded for hearing public interest cases, raids on hospitals, filtration plants and prisons in his days, is being blamed for extravagant judicial activism and exceeding the powers of his office, after retirement.
The applause for the new chief justice and criticism of the former top judge indicate the mindset of the nation. Justice Saqib Nisar will be remembered for hard work and suo motu notices of social and political matters. He listened to public complaints and resolved thousands of them. In the last year of his service, he refused to take a day off. He also started a fundraising campaign for dams to address the serious water issue of Pakistan. Former Prime Minister Nawaz Sharif was disqualified for life in his period, though he was not part of the bench. He plans to run a “free legal clinic,” for the poor after retirement, which lends credence to the general perception that justice is expensive and delayed in the country. But, he is not solely responsible for it. The judiciary is short of judges and the parliament has failed to reform the decades-old justice system. Justice Nisar did what he could do and became the most popular figure of his time, though at times, his words became louder than his judgments.
According to the 2017-18 World Justice Project Rule of Law Index, which measures whether ordinary people can resolve their grievances through the civil justice system, Pakistan’s score is the worst in the region. It is ranked the last in the six regional countries and stands at 105th out of 113 countries in the world. Over 40,000 cases are pending with the Supreme Court, over 300,000 with the five High Courts and about two million with the lower courts of the four provinces and the federal capital, according to the Law and Justice Commission of Pakistan. During the last five years, the number of cases pending with the Supreme Court has doubled and reached the highest level for the last 15 years. In 2006, the number of pending cases before it was 13,724. Today, it is thrice that. Compared to other countries, the court procedures in Pakistan are complicated, lengthy and expensive. On average, it takes 1,071 days to settle a commercial dispute in court. Then the case can go to the appeal stage first in a High Court and then in the Supreme Court. It is not unusual for a case to take more than a dozen years to be decided, says the World Bank report. Only one judge is available for 62,000 people in the Punjab and Khyber Pakhtunkhwa. In the Lahore High Court, only one judge is available for 2.2 million people. In the Punjab, a single judge has a case load of more than 660.
Justice Asif Saeed Khosa has spelled out his priorities after taking oath as the 26th chief justice of Pakistan. He intends to address causes that contribute to delay in disposition of cases at all levels of the judicial hierarchy. However, he is fully aware of the challenge. “There are 1.9 million pending cases in the country with only 4,000 judges,” he had observed few days before taking oath as the top judge. “Even if all judges of the Supreme Court, High Courts and subordinate judiciary work day and night for 36 hours a day, they cannot clear the cases. When we ask the government to increase the number of judges, so that justice can be delivered promptly, they reply to us they are short of funds,” he observed.
Referring to Justice Nisar’s efforts to raise donations to build dams, Justice Khosa said that he too wanted to build a dam. “I would also like to build some dams, a dam against undue and unnecessary delays in judicial determination of cases, a dam against frivolous litigation and a dam against fake witnesses and false testimonies and would also try to retire a debt, the debt of pending cases which must be decided at the earliest,” he pledged.
In contrast to the former chief justice, Justice Khosa has promised to use the power to take suo motu notices sparingly, “only in respect of larger issues of national importance where either there is no other adequate or efficacious remedy available or the available constitutional or legal remedies are ineffective or are rendered incapacitated.” Speaking on the thorny issue of military courts, he said, “The trial of a civilian in a military court is considered wrong across the world. It is said that military courts take less time to issue verdicts. Civilian courts should try to resolve cases in a short period of time. High Courts should exercise powers within their jurisdiction.” Defining the constitutional limits of national institutions, he said, “Army and intelligence agencies should not interfere in civilian matters. The job of the parliament is to legislate, not provide development funds. Transfers and postings are not among the parliament’s duties either.”
The new chief justice wants to bring structural and systemic changes to the judiciary to minimise litigation, eliminate unnecessary delays and rationalise the workload on judges. Chief justice Khosa will serve as top judge for only 337 days and is scheduled to retire on December 21, 2019. In his nearly two-decade long career, he has decided about 55,000 cases. A special bench headed by him has decided over 10,000 criminal cases since 2014. As work on judicial reforms is in the final stage, it is hoped the government will complete the process in weeks, instead of months, to help Justice Khosa complete his job and fulfill its own promise of cheap and speedy justice. It will be a great service to the nation.