We are living through a time of controversy and intrigue. Our most popular political party (in terms of elected membership) is hobbling without a manifest leader or sense of direction. Our opposition (in the Parliament) is led by an inert leadership. The only real political opposition (i.e. Imran Khan) is seen more on the streets than in the legislative assembly. Our Khaki leadership is being accused of conspiracies. And our economy – the backbone of any progressive nation – is being governed by an individual who is facing charges of financial corruption and money laundering.
Unfortunately, the judiciary finds itself at the center of this national quagmire. Being criticized by a select political junta on the one hand, and facing internal challenges of bar hegemony on the other, our judicial leadership faces unprecedented challenges that require serious reforms.
Fortunately for us all, at this critical juncture, our judiciary is headed by Chief Justice Saqib Nisar and Justice Asif Khosa (senior-puisne judge) at the Supreme Court, Chief Justice Mansoor Ali Shah in Lahore, and Chief Justice Yahyah Afridi in Peshawar. And, collectively, they are our best shot of judicial reform over the past many decades.
These individuals – all intellectual giants in their own right – are facing monumental challenges, resolution of which will have lasting impact for our judicio-political future. They have inherited 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 the leadership of our bench must walk this thin rope, all the while cognizant of the fact that they are being watched through the gaze of history.
While the ambit of the impending judicial challenges is perhaps inexhaustible, a few issues need special and immediate attention by these erudite judges.
First: our judicial system must find a way to reclaim its rightful ‘neutral’ place in the constitutional paradigm. This is not to say that our judiciary is not neutral; just that (owing primarily to the efforts of Nawaz Sharif and her daughter), some fraction of our population has started to view the judiciary as a partisan player in our statecraft. Over the past many months – starting primarily from time of formation of the JIT and culminating in the ‘5 people’ narrative of GT-Road – the largest political party of Pakistan has launched a concerted and deliberate campaign to undermine the moral and judicial authority of our courts. And with Iftikhar Chaudhary’s memory still fresh in most minds, this narrative of a ‘partisan’ judiciary has its buyers. In the circumstances, the leadership of our constitutional courts must find a way to quell such impressions, while continuing to decide strictly in accordance with law.
Second: in the wake of the Sher Zaman fiasco, it has (again) become painfully clear that personal fiefdoms within the bar are a serious threat to judicial independence and authority. If the honorable Courts cannot enforce their orders on the legal fraternity, what authority would they wield over the public at large? If Sher Zaman sympathizers gather behind Nawaz Sharif in Aiwan-e-Iqbal, chanting slogans against the judiciary, how will judicial verdicts find resonance in the society? It is time for our judicial leadership to take this egregious bull by its horns. There must be a zero tolerance policy towards to these ‘black sheep’ of the legal community. Our judicial leadership must put its full weight behind the District Judge who was beaten up in Ferozewala, and Faisalabad, and Gujranwala, and Lahore… But that alone will not be sufficient; efforts must also be made to break the entrenched fiefdoms (of the likes of Asma Jehangir and Hamid Khan) that support and protect Sher Zamans within their ranks.
Third: it is now an open secret that Justice Saqib Nisar, Justice Asif Khosa and Justice Mansoor Ali Shah also face tremendous challenges from within the ranks of our constitutional judiciary. Especially ever since judicial conduct and performance has come under review, per Article 209, in the Supreme Judicial Council proceedings. Unfortunately, (some of) those undergoing Article 209 proceedings have created their own constituency within the bar and the bench, which continues to undermine the reform efforts being undertaken by our judicial leadership. How best can this divide be mended, is a question that cannot be commented on in the public space. However, current judicial leadership is perhaps our best shot at mending this rupture, without compromising on the rigor and integrity of the 209 proceedings.
Four: these honorable judges, through personal example as well as fresh judicial elevations, must make efforts to unshackle our longstanding culture of conservative judicial dictas, thus breathing audacity into the arc of our jurisprudence. They must reclaim the virtue and valor of expanding the empire of our judicially enforced fundamental rights. Through personal experiences, much of it recently, the leadership of our bench understands that a judge is frequently targeted, even maligned, by forces of status quo, when he/she attempts to challenge the entrenched power structures of our democracy. And, as a result, majority of our judges (especially in the Provincial High Courts and the District Courts) have learnt the lesson of adjudicating cases as conventionally as possible. To not disturb the precarious balance of our governance. To embody nothing unorthodox. Nothing extraordinary. This tradition must now be replaced with a new creed of expanding the empire of our fundamental rights, and establishing the writ of our Constitutional over forces of status quo.
Five: in order to restore people’s faith in the virtues of a civilian judicial system, our judicial leadership must invigorate efforts that minimize 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, following CJ Shah’s example in Lahore, 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.
While on the point, special efforts must also be made 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.
The current leadership of the bench – and in particular Justice Nisar, Justice Khosa, Justice Shah and Justice Afridi – hold the key to lasting judicial reform. A confluence, such as this, holds impossible promise. This is no time for half-steps. This is no time to think of temporary solutions. This is a time to dream of a permanent judicial revolution.
