We have been orphaned once again. The man who solved all of our problems has retired and left us for good. For a brief period of six months, we were the luckiest nation on earth – surpassing our own previous records of being fortunate.
We had not one but two messiahs to guide us through the dark woods, statement by statement, speech by speech and news ticker by news ticker. Two pillars of the state – the executive and the judiciary – were in an unusual harmony, the kind of harmony found only under a provisional constitution order. In a rare moment of humility and truth, Imran Khan called him the real founder of Naya Pakistan. And now this founder of Naya Pakistan has left Constitutional Avenue.
Justice Saqib Nisar’s tenure has left us a fortune of 9 billion rupees. Now we only need something like Rs1491 billion more to build his dream dam and heal ourselves through water therapy. When Justice Nisar realised that per capita availability of water was shrinking because of rising population, not declining water resources, he also decided to do something about our best-on-the-earth fertility rate.
When he noticed that these teeming masses were not being treated fairly at elite English-medium schools, he decided to help them by forcing the schools to lower their fees. When he found that tertiary hospitals were not providing state-of-the-art health facilities to the people, he went after doctors till our health system became as efficient as our system of justice. He gave us pure milk, garbage-free cities, clean drinking water and a lot more. Most of all, he acted against corruption and because of his achievements against the corrupt Imran Khan garlanded him with the title of the founder of Naya Pakistan.
Unfortunately, even the best of messiahs cannot pay attention to everything. One thing Justice Saqib Nisar could not pay attention to was improvements in the delivery of justice in Pakistan. We learnt about the reason for that from a speech he gave at an event organised recently by the Supreme Court Bar Association (SCBA). Pakistan’s justice system, he said, was the best in the world. The proof of the statement is the honourable chief justice himself. Only such a perfect system can throw up someone as perfect as that to the top.
Only 1,900,000 cases are pending in Pakistani courts. These figures show the trust people have in Pakistan’s judicial system. Otherwise, why would they bother to bring their cases to courts, knowing that they may have to wait for two generations before their cases are resolved – or they may be hanged before a court finds them innocent.
All eyes are now fixed on Justice Asif Saeed Khosa, our new chief justice. At the full court reference for Justice Nisar, he called himself a conjoined twin of the outgoing chief justice. However, at the moment of separation, he decided to drop a bombshell by announcing that he would like to take a different course from his predecessor. He said, “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 hinted that he would focus his energies on reforming the judicial system of the country – left in perfect shape by his outgoing colleague. “It is also time to introduce some structural and systemic changes so as to minimise litigation, eliminate unnecessary delays and rationalise the workload. [The] time has also come when the judicial system as a whole needs to be redesigned or restructured and made simple and effective.”
What is most interesting, Justice Khosa intends to sheath his suo-motu sword – which has already had severe consequences for two elected prime ministers. According to CJP Khosa, “Suo-motu exercise of this court’s jurisdiction under Article 184(3) of the constitution shall 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.” He also intends to determine and lay down the scope and parameters of the exercise of the original jurisdiction of this court under Article 184(3) of the constitution.
As chief justice of Pakistan, Justice Khosa has the judicial pillar of the state under his direct command. Though the most independent of the three pillars, no judiciary can stand isolated in the system of governance. CJP Khosa wants to resolve Pakistan’s governance problems not by encroaching upon domains of other pillars of state but through a national process of dialogue and reconciliation.
According to Justice Khosa, “the 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.” His suggested course of action involves discussing “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.”
Justice Khosa is open to discussing “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.”
At the same time he wants to discuss where the other organs of the state have so far failed to provide the judiciary with the requisite support and how the legislature can be restricted to its legislative domain rather than encroaching upon the executive domain through development funds and through interference in appointment, posting, transfer or promotion of public servants which is the main breeding ground for misuse of authority, corruption, lack of merit, inefficiency and the resultant bad governance.
The new chief justice summed up his proposal by saying that “we have reached a stage in our national life where we must take stock of the mistakes committed in the past, and come up with a Charter of Governance so as to ensure that such mistakes are not repeated in future.” His proposals echo a similar agenda suggested by Raza Rabbani, a statesman among politicians.
In other words, he wants Pakistan’s ruling elite to finally make use of experiential learning for the sake of good governance and to end perpetual conflict in the system. He wants the institutions to get done with the fence setting once and for all in an amicable way, focusing on the national interest rather than institutional ambitions or class interests.
It appears that Justice Khosa does not want to be a messiah, but if he perseveres during his short stint in office, he may be remembered as the man who made an honest and intelligent effort to solve the problems lying at the root of the state of Pakistan.
The writer is an anthropologist and development professional.
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