Justice Asif Saeed Khosa farewell speech for Justice Saqib Nisar

SUPREME COURT OF PAKISTAN Speech

Address by Mr. Justice Asif Saeed Khan Khosa, Senior Puisne Judge /
Chief Justice designate, Supreme Court of Pakistan in the Full Court
Reference held in honour of the retiring Chief Justice of Pakistan Mr.
Justice Mian Saqib Nisar on January 17, 2019

Honourable Chief Justice and my brother Judges,
Attorney-General for Pakistan,
Vice-Chairman, Pakistan Bar Council,
President, Supreme Court Bar Association,
Members of the Bar,
Distinguished guests,
Ladies and gentlemen.

The Honourable Chief Justice of Pakistan Mian Saqib Nisar and I have
been conjoined judicial twins for the last about twenty 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.
Mian Sahib and I were elevated to the Bench of the Lahore High Court
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. In
the High Court as well as in this Court our seniority has been next to
each other’s and throughout this period of more than two decades we
have sat on seats in the tea rooms of the Courts placed next to each
other. During all this while we have been physically together and I
may, therefore, not be wrong in saying that we have been conjoined
judicial twins. Alas, by the stroke of midnight tonight these twins
shall stand separated physically not through any surgical intervention
but through a constitutional intervention and I must hasten to add
that the loss through such separation shall be entirely mine. A
sincere friend, a trusted confidant, a wise counsel and an
accomplished and erudite Judge like Mian Sahib shall no longer be
available on the Bench to help, advise and guide me.

The speakers before me have already spoken about how good a Judge Mian
Sahib has been. I can vouch for that and may add that I have served
with more than a hundred Judges of the Lahore High Court and of this
Court so far and I have found Mian Sahib’s mastery over civil, tax,
revenue, service and constitutional law enviable and difficult to
match. I have also served with a number of Chief Justices of the
Lahore High Court and of this Court and I have no hesitation in
acknowledging that Mian Sahib will go down in history as one of those
Chief Justices who steered the Court quite ably in testing times. The
tenure of Mian Sahib as the Chief Justice of Pakistan fell in times
which were turbulent, to say the least. The saga of the Panama Papers,
the issues of constitutional disqualification of political leaders,
the events leading to holding of the general elections in the country
and the issues arising out of the national effort against terrorism,
extremism, corruption and poor governance posed huge challenges but
Mian Sahib was able to wade through all those troubled waters and to
steer the ship of this Court to safe and still waters. Despite his
preoccupation with such larger national issues he also devoted his
attention to many issues of public importance regarding the citizens’
fundamental rights. His keen interest in provision of clean drinking
water in cities, removal of encroachments upon the State land,
adequate medical facilities in hospitals, proper management of medical
and legal education, supply of pure milk, recovery of written-off bank
loans, proper investigation of mega corruption scams, population
welfare, building of dams and water reservoirs, retirement of national
debt and in some other areas of public importance has sensitised the
governments and the populace at large on such vital issues. His
efforts made towards police reforms are also likely to lead to an
upturn in administration of justice. Mian Sahib, your contributions in
all these areas have left a mark and we shall always remember you with
admiration and reverence.

Ladies and gentlemen,

As is customary, let us now have a peep into the near future. With an
experience of over two decades as a Judge and with the support of my
colleagues also having vast experience I would, if Almighty Allah so
wills, like to avail every moment of my remaining time on the Bench to
attend to the causes that contribute towards delay in disposition of
cases at all levels of the judicial hierarchy. With an untiring effort
of my colleagues having expertise on the criminal side we have already
succeeded in deciding thousands of criminal cases and in wiping out
the backlog of such cases in this Court and we are now left with only
a few hundred pending criminal cases which can be termed as current
cases. Such a target and success have seldom been achieved in any
Court before and this has been possible in this Court only because the
cause-list of the day was kept in control and there was a uniform
policy of not entertaining or discouraging applications for
adjournment. We understand that for a legal practitioner there cannot
be an obligation or engagement more pressing or urgent than to appear
before the Court when his or her case is fixed before the Court for
hearing. We on the Bench greatly appreciate the cooperation extended
to us by the learned counsel in this respect. An effort shall be made
to extend and follow the same policy in all other categories of cases
as well and we expect the learned counsel to extend similar
cooperation to us even in those cases. For facilitation of the learned
counsel and in order to minimise the chances of adjournments modern
technology shall be utilized and a possibility shall be explored
regarding establishing video links between the Branch Registries of
this Court and the Principal Seat through which the learned counsel
may address arguments in the courtrooms of the Branch Registries and
appropriate Benches of this Court may hear those arguments at the
Principal Seat in real time and decide cases. Such innovation may
reduce inconvenience and huge expense on the part of all concerned
besides diminishing delays caused by non-availability of Benches at
the Branch Registries of the Court.

The model courts set up in some of the Districts of the Punjab upon my
initiative and under the patronage of Mian Sahib and supervision of
Justice Syed Mansoor Ali Shah when his lordship 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. Even the steps taken
towards judicially conducted arbitral interventions during criminal,
civil and family litigation have yielded very positive results in the
said Province and expansion of the said project shall also be explored
seriously. Mian Sahib had once observed publically 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. I can
anticipate that some of the steps to be taken in these areas may face
some resistance or reluctance from those who are used to the old ways
but I am sure that the results to be achieved will convince all
concerned of utility and usefulness of such steps. I would like to
assure you that all such steps will be taken in the best interests of
the institution of judiciary and that in all manner of circumstances
we shall like and prefer to be correct rather than erratic and proper
rather than popular.

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 3000 Judges and Magistrates available from top to
bottom. Successive governments have failed to suitably increase the
number of Judges and Magistrates on account of financial constraints.
3000 Judges and Magistrates cannot handle 1.9 million cases even if
they work for 36 hours a day. It is, therefore, time to take some big
and hard decisions. It is also time to introduce some structural and
systemic changes so as to minimize litigation, eliminate unnecessary
delays and rationalize the workload. Time has also come when the
judicial system as a whole needs to be redesigned or restructured and
made simple and effective. The four-tier judicial hierarchy in the
country ought to be replaced with a three-tier system wherein there
should be the District Judiciary as the trial court for all civil and
criminal cases, the Provincial High Courts as the courts of appeal in
all cases and the Supreme Court as the last resort. All questions of
fact must attain finality at the level of the High Court and the
Supreme Court ought to attend only to interpretation of the
Constitution and laws. 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. The special courts created under a Federal
statute may be financed and administered by the Federal Government but
they may fit into the same hierarchy. Having only one judicial
hierarchy may eliminate jurisdictional disputes as well as the delay
caused in resolving such disputes. 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. The
already blurred distinction between Regular First Appeal, Regular
Second Appeal, Revision petition and First Appeal against Order, etc.
before the High Court ought to be done away with and in a three-tier
judicial hierarchy a right of appeal may be provided against all
orders or judgments of the trial court with a clear provision
requiring the appeals against interim orders of the trial courts to be
filed with an advance notice to the opposite party and such appeals
may be finally decided within a few days. Shorter formats of judgments
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 judgment writers may be provided to
the judges at all levels so that their time may be saved in matters of
research and drafting. The constitutional jurisdiction of a High Court
must be exercised within its prescribed limits and resort to it as a
matter of course as the next available remedy has to be stopped or
discouraged. For constitutional cases of national importance a
Constitution Bench may be administratively carved out in this Court
from within the strength of the Court keeping in view the seniority of
the relevant Judges and reflecting the Federal character as far as
practicable. My colleagues and I would also want this Court to attend
to many laws which are either unnecessary or their wrongful
utilization is clogging the courts. It shall be suggested to the
legislature that such unnecessary or problematic laws ought to be
repealed or suitably amended and in case of failure of the legislature
to attend to the said issue such laws may be judicially scrutinized.
There are also some issues of public importance with reference to
enforcement of fundamental rights of the citizens which have hitherto
remained unattended and an effort shall be made to attend to those
issues in all earnestness within the shortest possible time. 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. 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 and, if deemed
appropriate, to carve out the scope of an Intra-Court Appeal in such
matters through an appropriate amendment of the Supreme Court Rules or
to suitably amend the provisions relating to review jurisdiction so as
to enlarge its scope in such cases. I am conscious that the issues
being faced by the justice sector are gigantic but I may assure you
that 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.

Ladies and gentlemen,

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. There is no gainsaying that all the
three organs of the State, i.e. the Legislature, the Judiciary and the
Executive are always to strive hard for exercising their powers and
performing their functions to the best of their abilities while
maintaining their independence and operational autonomy but at the
same time when it comes to steering the ship of the State and handling
the larger national issues all such organs are to work in tandem in
finding solutions which advance the spirit and purposes of the
Constitution. 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 jeopardizing
good governance. Let us discuss with open minds where the judiciary,
the executive and the legislature have gone wrong in the past. 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. Let us also
discuss why the judiciary is struggling hard while trying to handle
huge influx of cases and where the other organs of the State have so
far failed to provide it the requisite support. Let us also discuss
how the legislature can be restricted to its legislative domain and
how the legislators can be held back to their legislative role 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. Let us discuss how the executive authorities
and departments are to be kept operationally autonomous in
administrative matters while implementing the policies of the
political executive so as to ensure good governance. 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. Let us deliberate how civilian
supremacy can be ensured alongside civilian accountability without the
process of accountability destabilizing democracy. And, let us not
forget or fail to discuss the issue of missing persons and of enforced
disappearances and their adverse impact upon the constitutional scheme
of things as well as national cohesion. It needs to be realized and
appreciated by all the stakeholders that statecraft is too serious a
business to be reduced to a game of hide and seek and that in a
constitutional democracy national security cannot be pursued by
employing methods which are offensive to the constitutionally
guaranteed fundamental rights to life and liberty. Instead of adopting
a trigger-happy approach or a devil may care attitude on these
delicate and sensitive issues we need to find solutions from within
the Constitution and the law. Let us, therefore, sit together and
discuss. Let us not keep drifting or floating aimlessly. Time has come
to reflect upon the past, learn from the mistakes and to define the
future course of action with clarity lest the rudderless ship may be
swept away by the storm of unbridled emotions and selfish
short-sightedness. Let us not shy away from all such critical issues
or look the other way in careless abandon and let us catch the bull by
its horns if we want to make any progress as a forward looking and
democratic nation governed by a Constitution. Let us call a spade a
spade, rise to the occasion and try to emulate our founding fathers in
an effort to rebuild our nation on the foundations of freedom
envisioned by our revered elders. I would, therefore, with the
approval and support of my colleagues, propose holding of an
inter-institutional dialogue at the summit level and would request the
worthy President of Pakistan to convene a meeting and to chair the
deliberations. 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. I would propose 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. After bringing all such major
stakeholders in the national governance on one table under the
patronage of the President of Pakistan an effort should be made
through such proposed exercise to heal the wounds of the past, attend
to the sore points and work out a practicable policy framework
whereunder every organ and institution of the State exercises its
powers and performs its functions within its constitutionally defined
limits. The sole purpose of the proposed exercise should be to bolster
constitutionalism and rule of law, strengthen democracy and create an
environment wherein the State and all its organs and institutions may
be able to devote their wholehearted attention to the real issues of
the citizens of this great country and, as envisaged in the Preamble
to our Constitution, “So that the people of Pakistan may prosper and
attain their rightful and honoured place amongst the nations of the
World and make their full contribution towards international peace and
progress and happiness of humanity”.

In the end, with fondest of memories and with every good wish I on my
own behalf and also on behalf of all my colleagues bid farewell to our
very dear friend, our illustrious colleague and our distinguished
Chief Justice Mian Saqib Nisar. Sir, we shall all miss you on the
Bench but at the same time all of us pray for your good health, long
life and further fruitful contributions in diverse walks of life in
the days to come. May Almighty Allah bless you and your family.
A’meen.

Read the complete story in Atraaf Magazine January Edition.

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