By News Desk
ISLAMABAD: Chief Justice-designate Asif Saeed Khan Khosa on Thursday said that suo motu exercise of the apex court’s jurisdiction under Article 184(3) of the Constitution will be exercised very sparingly and only in respect of larger issues of national importance.
Addressing the full court reference here in the Supreme Court on the eve of retirement of Chief Justice of Pakistan Mian Saqib Nisar, Justice Asif Saeed Khosa said that suo motu exercise of the apex court’s jurisdiction under Article 184(3) of the Constitution will be exercised very sparingly and 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.
“Either through a full court meeting or through a judicial exercise, an effort shall be made to determine and lay down the scope and parameters of exercise of the original jurisdiction of this court under Article 184(3) of the Constitution,” Justice Khosa said.
Justice Khosa, who will take charge today (Friday) as the 26th Chief Justice of Pakistan, said that he and Chief Justice Mian Saqib Nisar have been conjoined judicial twins for the last about 20 years and eight months.
“In the medical jargon, conjoined twins are twins whose bodies are connected to each other and it is through a very complicated surgical intervention that such twins may be separated,” he explained.
Justice Khosa said Saqib Nisar and he were elevated to the bench of the Lahore High Court (LHC) together on May 21, 1998.
“We were deposed together on November 03, 2007, we were restored together on August 30, 2008 and we were elevated to the bench of this court together on February 18, 2010, he mentioned.
Referring to the subject of military court trials, Justice Khosa said, “Military courts trying civilians in criminal cases are universally perceived as an aberration propelled by necessity and expediency.”
“If the legislature, in its own wisdom, decides to continue with such courts for the time being then it may consider providing for appeals from their decisions to lie before a high court so as to adjust such courts in the normal judicial hierarchy and to ensure that expediency does not trump justice,” he said.
Vowing to ensure speedy delivery of justice during his upcoming tenure, the judge said, “Shorter formats of judgements and orders ought to be introduced so that time of the courts is not wasted in writing unnecessary details and, as far as possible, law clerks, research assistants and judgement writers may be provided to the judges at all levels so that their time may be saved in matters of research and drafting.
Referring to Justice Saqib Nisar’s efforts to raise donations to build Diamer-Bhasha dam, Justice Khosa said that he too “will build a dam against fake cases, pending cases.”
“Mian Sahib had once observed publicly that he is left with only two ambitions in life, i.e. to build dams and to retire the national debt. 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 possible,” Justice Khosa said, adding, “There are about 1.9 million cases pending in the country before all the courts put together and to handle such a huge number of cases there are only about 3,000 judges and magistrates available from top to bottom.”
He said that it is the need of an hour to take some big and hard decisions and it is also time to introduce some structural and systemic changes so as to minimise litigation, eliminate unnecessary delays and rationalise the workload.
“Time has also come when the judicial system as a whole needs to be redesigned or restructured and made simple and effective,” he asserted.
Justice Khosa emphasised that all institutions need to work together for the progress of the country, and that there was a need for conversation on whether any institution was interfering in another institution’s work.
“Let us admit that in the recent past there has been a trust deficit between different organs of the state and every organ has reasons for sticking to its declared position... Let us discuss where each other’s domain has been encroached upon in the past and try to resolve such issues through a mutually agreed course of action. Let us discuss the alleged encroachment of the executive domain by the judiciary through interference in matters of policy, the alleged excessive use of its constitutional jurisdiction in matters which are administrative in nature and how best the judiciary can return to its normal but effective adjudicatory role,” said Justice Khosa, adding, “Let us also discuss, without mincing words or feeling shy, the role of the armed forces and the intelligence agencies in the governance paradigm. Civilian supremacy as well as civilian accountability are sine qua non for democratic sustainability.”
He further said there was need for a debate on the charter of governance under the tutelage of the president of the country.
“I am of the opinion that we have reached a stage in our national life where we must take stock of the mistakes committed in the past and to come up with a charter of governance so as to ensure that such mistakes are not repeated in future,” Justice Khosa said and proposed that such a summit may be attended by the top parliamentary leadership, the top judicial leadership and the top executive leadership including the military and the intelligence agencies.
Justice Khosa said the constitutional doctrine of separation of powers is sound and valid so far as the institutional and operational independence of every organ of the state is concerned, but nothing in the said doctrine demands institutional isolation or forbids collective efforts to achieve common good. “In my humble estimation, time has come when we should put our heads together and in the spirit of truth and reconciliation discuss the larger issues jeopardising good governance,” he said.
He also proposed an inter-institutional dialogue at the summit level and said he would request the President of Pakistan to convene a meeting and to chair the deliberations.
Justice Khosa said he was conscious that the issues being faced by the justice sector are gigantic, but no stone shall be left unturned in attending to such issues and in trying to improve the situation.
“With Baloch blood running in my veins I shall fight till the end and I am confident that with the support and cooperation of my colleagues and the bar the struggle shall bear fruit,” he said.
Justice Khosa further said all the special courts ought to be abolished and there ought to be one hierarchy of courts with specified judges of the district judiciary attending to cases under the special laws like drugs, banking, narcotics, corruption, terrorism, labour, intellectual property and consumer protection, etc. with appeals in such cases going to the high courts. He said the model courts set up in some of the districts of the Punjab upon his initiative and under the patronage of Justice Saqib Nisar and supervision of Justice Syed Mansoor Ali Shah when he was the Chief Justice of the Lahore High Court conducted and concluded trials of criminal as well as civil cases in three to four days rather than three to four years as was the case in the yesteryears. “With the approval and cooperation of the high courts an all-out effort shall be made to expand the said project to the entire country,” he said.