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ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Asif Saeed Khan Khosa has said that the growing perception that accountability process being pursued in the country at present is lopsided and is a part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility.
The chief justice was addressing at the opening ceremony of the New Judicial Year 2019-2020 of the Supreme Court of Pakistan held here at the apex court. In recent times, the chief justice said that the leadership of the Bar has repeatedly voiced its concerns over receding political space in governance of the state and such concerns must not be ignored.
“As an important and independent organ of state responsible for safeguarding the constitutional ethos of the country, we feel that such loss of political space in governance of the state may not augur well for the future of the country as a constitutional democracy,” the CJP said.
He said that recovery of stolen wealth of the citizenry is a noble cause and it must be legitimately and legally pursued where it is due but, if in the process the constitutional and legal morality of the society and the recognised standards of fairness and impartiality are compromised, retrieval of the lost constitutional and legal morality may pose an even bigger challenge to the society at large in the days to come. He also mentioned shrinking space of dissent in the country, an oft-repeated concern of bar associations across the country.
“Such concerns cannot be ignored,” says the top judge, adding that “such loss of political space may not augur well for the future of the country as a constitutional democracy”. He said the reports of growing censorship are “disturbing” and such practices are a “serious threat to the democratic system itself”.
“Constitutionally guaranteed rights of citizens ought never to be compromised for the sake of short-term political or governance advantages.” Referring to the conduct of the proceedings of the Supreme Judicial Council (SJC), the CJP said that the chairman and members of the Supreme Judicial Council are committed to their oath of office, they work with an unflinching resolve to proceed in all matters “without fear or favour, affection or ill-will” and nobody should expect anything from them other than justice according to law.
The CJP said that the Supreme Judicial Council is mandated by the Constitution to inquire into conductof judges of the superior judiciary and he must say that the job to be performed in that regard is the most unpleasant job that its chairman and members are to perform in their entire judicial careers. “Nonetheless, it is a constitutional duty they cannot refuse to perform,” he added.
The chief justice said that the Constitution empowers the president to direct the council to inquire into the conduct of a judge and the council cannot disregard such a constitutionally mandated direction and it must inquire as directed.
“It, however, goes without saying that such a direction to inquire does not, and cannot, control the opinion to be formed by the Council after inquiring into the matter,” the CJP said. The CJP said that 56 privately instituted complaints/information were pending before the Supreme Judicial Council at the start of the last judicial year in September, 2018 and during the last judicial year 102 more complaints/information were filed before the Council.
He said that as many as 149 of such complaints/information were duly processed and disposed of by the Council during the last judicial year and at present 9 complaints/references are pending before the Council including 2 references filed by the president.
In 3 out of the 4 complaints/information instituted before filing of the presidential references, the CJP said that different steps were already being taken in terms of the prescribed procedure before the presidential references were filed and in the 4th such complaint/information proceedings of the Council had already been stopped because of pendency of the same matter/issue before the Supreme Court on its judicial side.
As regards the two presidential references, different steps have already been taken by the Council and in the remaining 3 complaints/information received by the Council after filing of the presidential references some progress has already been made in terms of the requisite procedure, the CJP said.
Referring to the mater of taking suo motu actions, the chief justice said that he was aware that a section of the society is unhappy over the fact that in the last few months, this court has not shown much interest in exhibiting judicial activism and has been slow in taking suo motu action over issues where that section of the society so demanded.
The CJP, however, said that that section of the society may remember that only a few months ago, the same section of the society was highly critical of such an enterprise. “We realise that criticism of this court over exercising restraint in some controversial and contentious matters may be far safer and less harmful than its criticism over imprudent and undue interventions in such matters,” the CJP maintained.
He said that the said section of the society may also appreciate that taking of suo motu action by this court on the demand of some persons may constitute dictated exercise of jurisdiction whereas that very section otherwise believes that this court should never act at the bidding or demand of any outsider because acting on that basis militates against independence of this court.
The chief justice recalled that in his earlier speech during the farewell reference held in honour of the outgoing Chief Justice of Pakistan, he had observed that “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.
Apart from that a suo motu notice taken on a demand of somebody else may not be suo motu and would be a contradiction in terms, the CJP said adding that this Court shall take suo motu notice of a matter only when it feels the necessity or utility for it and not when it is coaxed in that regard by outsiders.
The CJP said that instead of judicial activism, it is practising active judicialism and it is taking measures to improve and activate the judicial sector in many ways. It has decided to put its own house in order first and the steps taken by this court during the last judicial year”, the CJP added.
The chief justice, however, informed that in response to the demand made by the legal community, fixing of parameters and procedure for suo motu exercise of this Court’s jurisdiction under Article 184(3) of the Constitution, a draft is likely to be presented in the next full court meeting and discussed proposing a suitable amendment to the relevant part of the Supreme Court Rules, 1980 and determining how a suo motu notice may be taken of a matter by the court.
Similarly, he said that on January 17 this year while speaking during the farewell reference held in honour of the outgoing Chief Justice of Pakistan, he had urged the executive and the legislature to consider restructuring of the judicial system of the country by introducing a three-tier system, doing away with special courts and repealing or amending some unnecessary and problematic laws but unfortunately nothing has been done in those areas so far.
“Even my suggestion regarding holding of an inter-institutional dialogue for sorting out irritants within the organs and institutions of the state has not received any consideration and the serious issue of the missing persons also still haunts us all”, the CJP said but expressed the hope that after the executive and the legislature are through with the pressing issues engaging their attention at present the suggestions made in the above mentioned regards shall receive proper attention.
Earlier, addressing on the occasion, Vice Chairman Pakistan Bar Council (PBC) Syed Amjid Shah recalled that as the courts decided at the earliest the cases of former prime minister by awarding him punishments but, at the same time, he said that it is a matter pf grave concern that a dictator who twice abrogated the constitution and the decision is still awaited in the case filed against him and they expect decision in the said case will soon be announced without further delay.
Similarly, he recalled that it has been earnest demand of the council that the appointment of judges in the superior courts should be made in fair and transparent manner as, he said that the appointments made so far by the Judicial Commission are not up the required standard as the basic reason was that the process of appointment of judges was not made in transparent manner.
The PBC vice chairman demanded amendments to the rules of Judicial Commission of Pakistan in order to make the process of appointment of judges in the superior courts transparent. He also expressed the hope that the apex court will fix before an appropriate bench, the petitions filed under Article 184(3) of the Constitution by PBC, SCBA and others, challenging the presidential references field against Justice Qazi Faez Isa and Justice KK Agha.
Speaking on the occasion, Attorney General Anwar Mansoor Khan said that the Supreme Court has embarked on many initiatives during the preceding judicial year due to its relentless commitment, much progress was achieved towards improving disposal of cases and reducing backlog.
He said that other efforts were made by our lordships to facilitate speedy disposal of disputes, which include introduction of E-Court system in the Supreme Court. It is a major step towards revolutionising Pakistan’s legal framework and it has reduced the travelling costs, the cost for accommodation and other allied costs for the litigants and the legal fraternity.
He said that the International Court of Justice has afforded to our courts in Pakistan, especially the Supreme Court of Pakistan in the case of Kulbhushan Jadhev, where they have stated, that the review and reconsideration would be done in the manner as provided by our laws, namely by the High Courts and Supreme Court of Pakistan.
This is because of outstanding judgments in relation to the fundamental rights and liberty of persons, that the superior courts rendered having given priority to such cases in relation to every persons he/she is a citizen or otherwise”, the AG said adding that the Judicial Year 2018-19 was a year of many triumphs.