Kasuri throws caution to new CJP in open letter

January 18,2019

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ISLAMABAD: Former Foreign Minister Barrister Khurshid Mahmood Kasuri has begged Justice Asif Saeed Khan Khosa, the new Chief Justice of Pakistan (CJP) , that he wouldn’t condone the sweeping scope and unbridled use which undermines the functioning of lower courts, and couldn’t be squared with the Constitution’s Article 10-A due process guarantees or with rights of appeal.

Khurshid Kasuri who is descendant of distinguished jurist’s family has written an open letter to the new Chief Justice, Justice Asif Saeed Khan Khosa, wherein he has discussed the outgoing Chief Justice era’s activities and in the light of that he offered few suggestions. Barrister Kasuri expressed hope that new Chief Justice will leave a legacy which will make the following generations of lawyers and judges look up to his judgments with pride.

He said, “Only sound judgments stand the test of time.” Khurshid Kasuri has said that whereas he respected former Chief Justice Mian Saqib Nisar’s reputation for integrity and legal expertise, but, even well-meaning actions, unless completely and thoroughly thought through, can wreak disastrous consequences.

He points out that it does not require a sage to predict that such impulsive, impetuous and ‘popular’ actions cannot stand the test of time nor defy the laws of economics. Recalling the tenure of the former Chief Justice Iftikhar Chaudhry, Khurshid Kasuri added that there were complaints from senior bureaucrats that he interfered in their work excessively, he had a habit of summoning them and then making them wait for hours, wasting their productive time besides compromising their dignity.

This attitude which continued during CJ Nisar’s tenure has also caused near-paralysis in the bureaucracy and almost a pen-down strike, he said. He said that ‘trial by the media’ became a constant complaint during his tenure. Replicating CJ Iftikhar Chaudhry’s playbook, CJ Saqib Nisar ushered in a reign of suo motu driven judicial activism and remained in the news 24/7, often grabbing top headlines.

“Perhaps he (CJ) made more news than the Prime Minister! It appeared that neither the executive nor the Parliament mattered,” he said. The former Foreign Minister said that the civil government cannot, it seems, even fix the date for Mohmand Dam’s inauguration. This, he added, was not what is envisaged or the norm in a constitutional democracy. The proactivity of Chief Justice Nisar in political and economic affairs is discounted with his own acknowledgment, “I admit openly that I have been unable to put the house in order.”

Khurshid Kasuri while referring judicial decisions in the Pakistan Steel Mills (PSM), Reko Diq and Rental Power Plant (RPP) case recalled that he was trying to attract the Russian government on tripling the capacity of steel mill and had very useful discussions with his Russian counterpart Foreign Minister Sergey Lavrov who showed great keenness in the project. “The Court’s decision put an end to all such efforts,” he said. “As it is, the Court’s decision has swelled the Steel Mill’s losses to over Rs200 billion and counting! Meanwhile, the Court’s decisions in RPP and Reko Diq cases have been disregarded by international arbitration awards, imposing on Pakistan damages of $700 million in the RPP matter and potentially exposing it to damages of astronomical amounts in the Reko Diq matter,” he said.

Regarding the attitude of the former Chief Justice towards lawyers, litigants or even those who happened to be present at the court, Barrister Kasuri said that there were complaints galore. He referred to how harshly he treated respected veteran journalist of unimpeachable integrity Hussain Naqi in his late 80s and addressed him as ‘tum’! Khurshid Kasuri said he was shocked as was the entire journalist community at this.

He pointed out the desire of two former chief justices to remain in the media 24/7. He said that it is well known that judges should lead the life of a recluse; perhaps, for this reason the names of the judges in England did not appear in a telephone directory. He said it is axiomatic that that judges best speak through their judgments. In his letter, he has referred to Islamic and Western approaches regarding qualities and conduct of judges and quotes, inter-alia, Hazrat Ali (RA), Thomas Hobbes and Judge Richard A. Posner who has said, “Beware…the angry judge!” Khurshid Kasuri said he was rendered speechless when recently a very well-known senior advocate of the Supreme Court told him that while CJ Nisar was about to take a decision, the lawyer concerned pointed out that what the Chief Justice was contemplating could not be supported by law, the Chief Justice said words to the effect that “it is law if we say it!” Kasuri also referred to the recent spate of contempt notices either threatened or actually issued against various people. ‘The judges are not supposed to be known by the example of their power. Rather, their respect emanates from the quality and meticulousness of their judgments.’

Barrister Kasuri prayed for Chief Justice, Justice Asif Saeed Khan Khosa’s success. While felicitating new Chief Justice on assuming office, Khurshid Kasuri expressed hope that in view of the new Chief Justice‘s academic background and legal track record, he will exercise restraint with respect to the application of Article 184(3).

He reminded that his views are not new and that he stood by what he had stated in his book, ‘Neither a Hawk, Nor a Dove’ published in 2016 (pages 452-475) that there are genuine cases of executive and legislative failure which require the Court to enforce fundamental rights in matters of public importance. He opined that the Supreme Court may only as a last resort justifiably exercise its suo motu powers as per the Constitution’s Article 184 (3).


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