February Issue 2019
The New Face of Justice
Justice Asif Saeed Khan Khosa formally took oath as the Chief Justice of Pakistan on January 18, following the completion of Justice Saqib Nisar’s tenure as CJP. Justice Khosa will be at the helm of the judiciary for little over 11 months as he is set to retire on December 21, 2019 – his 65th birthday.
Justice Khosa, who is known to be a man of letters and numbers, underlined that 1.9 million cases were pending in a country that has only 4,000 judges to adjudicate them. While his predecessor’s controversial legacy was punctuated by the creation of a fund for the Diamer-Bhasha Dam, Justice Khosa has vowed to build a dam “against undue and unnecessary delays in judicial determination of cases” and vowed to clear the “debt of pending cases.”
Over the past couple of decades, Justice Khosa has given verdicts on approximately 55,000 cases. Since February 18, 2010, he has done so in the capacity of a Supreme Court Judge.
While the top judge has said that the next 11 months would see a rise in the judiciary’s frequency of putting cases to bed, his own career seems to suggest that he is an idealist.
Justice Khosa, who was among the Lahore High Court (LHC) judges that did not take oath under the Provisional Constitution Order (PCO) in 2007, has spearheaded some of the headlining cases of the past decade. These include the disqualification cases of two prime ministers (Yusuf Raza Gillani and Nawaz Sharif), the verdict against Mumtaz Qadri and the acquittal of Asia Bibi over false blasphemy allegations, to name but a few.
Justice Khosa, who is the author of multiple books, is renowned for the incorporation of literary prose in his verdicts. He quoted Khalil Gibran in the ruling against Yusuf Raza Gillani and penned the infamous ‘Godfather’ reference in the verdict against Nawaz Sharif. That latter reference has been cited by the Pakistan Muslim League-Nawaz (PML-N) as evidence of the Supreme Court’s bias against the party and its alleged connivance with the military establishment to undermine parliamentary supremacy.
Even so, in complete contrast to that impression, Justice Khosa appears to want to put the judicial house in order first and is bringing forth a vision that entails cutting back on the kind of judicial overreach often exercised by the apex court.
His suggested reforms entail a restructuring of the judicial system and a strengthening of district-level courts. He wants the high courts to be the final destination for appeals, while the Supreme Court deals with cases pertaining to the Constitution.
Justice Khosa’s own practice of minimal adjournments further illustrates an inclination towards bringing swift justice through proper legal channels. The new chief justice has also expressed a desire to gradually do away with the special courts, which is only possible if the much-touted judicial reforms are initiated under his watch.
Even so, his verdicts against two elected premiers and the words he used to disqualify them, continue to pinch the flagbearers of parliamentary supremacy, many of whom lauded those very decisions when they were not at the receiving end. And yet, Justice Khosa’s career, and indeed his first words as the country’s top judge, suggest that steps could be taken to undo the wrongs that the judiciary has committed and gradually inculcated within its own ethos.
“[Justice Khosa] is a literary man, I expect him to stick to his principles. He has showed that he doesn’t shy away from giving courageous verdicts. It will be a new era,” believes senior analyst and Editor of Pakistan Today, Arif Nizami. “One thing that he has specifically pointed towards – which was a big failure of Justice Saqib Nisar – is systematically addressing the judiciary’s flaws and focusing on them first.”
Former federal minister for information and broadcasting and Supreme Court Barrister, Syed Ali Zafar believes that judicial reforms are a necessity. “The chief justice has hinted towards bringing democracy into the judiciary,” he says. “For instance, Article 184 (3) currently allows the chief justice to exercise suo motu through his own will, without any input from other judges. But now it’s being hinted that suo motu will be taken after consultation with the senior judges,” he continues. “Another likely reform is that if one bench takes up a suo motu case, another should hear the appeal against it.”
Khurshid Kasuri, who was the foreign minister during General (R) Pervez Musharraf’s tenure, wrote an open letter to Justice Khosa after he took oath, pointing towards the ‘judicial activism’ that prevailed under former chief justice Iftikhar Chaudhry, and implored that the judiciary abandon any forays into governance.
“While suo motus may momentarily highlight issues, they are ill-suited to fixing them permanently and in fact may make matters worse, as judges are not experts in different fields of governance,” wrote Kasuri, adding that their expertise lay in the field of law. “During the tenure of the former chief justice, Iftikhar Chaudhry, there were complaints from senior bureaucrats that he interfered in their work excessively. Moreover, he had a habit of summoning them and then making them wait for hours, wasting productive time and compromising their dignity,” he continued.
Lawyer and analyst Saad Rasool feels that there are many judicial challenges affiliated with Pakistan’s political realities, which Justice Khosa has inherited.
“There are a few political forces in the country that have initiated a campaign against the judiciary; this has brought them at loggerheads and now requires withdrawal from both sides,” says Rasool. “The chief justice can further reinforce this through his personal conduct and the conduct of his bench.” He points out that “in his inaugural speech, Chief Justice Khosa suggested that instead of the judiciary acting independently – without properly tying [its actions] with the parliament and the executive – the stakeholders should sit together and after due consultation, the parliament, judiciary and the executive should each do their own job, without overreaching into each other’s turfs.”