A period of restraint

Although there is prima facie ground for suo-motu intervention by the superior judiciary in the Sahiwal extrajudicial killing, Pakistan’s new Chief Justice Asif Saeed Khosa has kept his promise to use Article 184 (3) “sparingly” and in exceptional circumstances, only when no other “adequate or efficacious remedy” is available. Will we now be witnessing a period of judicial restraint?

In his address to the full court reference held in the honor of outgoing CJ Saqib Nisar, Justice Khosa turned the two major projects of the previous CJ – that of “building dams” and “retiring debts” – around by vowing instead to put a “dam against frivolous litigation....and to retire a debt – the debt of (19 lakh) pending cases”.

Justice Khosa has suggested that “either 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)” and “to carve out the scope of an intra-court appeal in such matters through an appropriate amendment of Supreme Court Rules”. Hopefully, all these commendable promises shall be honoured to keep judicial restraint and check the excessive use of jurisdiction under Article 184 (3) while allowing intra-court appeal.

Describing a “trust deficit between different organs of the state”, Justice Khosa has called for an intra-institutional dialogue to be convened by the president of Pakistan to evolve a broader consensus on a “Charter of Governance”. In his opinion, “we have reached a stage in our national life where we must take the stock of the mistakes committed in the past …to ensure that such mistakes are not repeated in future”. CJ Khosa has suggested a summit meeting of the top civil, military and judicial leadership 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 state exercises its powers and performs its functions within its constitutionally defined limits”.

Justice Khosa’s suggestions have received mixed reactions from politicians and academics. Some feel that a ‘Charter of Governance’ would be an extra-constitutional exercise since the 1973 constitution already provides a clear demarcation of the roles of the three organs of the state. Forgetting the persistent institutional tensions and overlapping, the remedy offered by such a critique is that all institutions and organs of the state must loyally observe their constitutional limits and that it is parliament which is eligible to evolve a Charter of Governance or define intra-institutional relationships. This critique, though principled, is simplistic and ignores the ground realities and de-facto predominance of non-elected institutions and power-structures.

There is another view which questions institutions being stakeholders in a republic where only the people are sovereign and which sovereignty can be exercised by the elected representatives who are responsible before parliament. Given the past role of the office of the president, the other disagreement is about who holds such a dialogue: parliament or president? This is a procedural issue and can be resolved since the president is also a part of parliament. There are also those who are sceptical of the judicial role, given Pakistan’s history of the role of parliaments and elected governments being undermined.

What is more important about Justice Khosa’s address is that he has very honestly brought some very important issues on the agenda of the proposed intra-institutional dialogue; these issues have dogged Pakistan’s evolution and the sovereignty of the people, constitutional rule, and supremacy of parliament. It seems the chief justice of Pakistan has felt the need for such a charter since the 1973 constitution is not being observed by the organs of the state, despite a clear demarcation drawn through the concept of trichotomy of power.

In the interest of the consolidation of democratic transition and constitutional representative rule, it is also necessary that the judiciary – while guarding against all encroachments on the rights and freedoms of citizens on an equal basis – avoids directing on policy matters, markets, executive matters and legislative issues. It is also very important that security institutions too remain a part of the executive that is responsible to parliament.

Similar proposals for intra-institutional dialogue were floated by, among others, the former chairman of the Senate, Mian Raza Rabbani. He has again emphasised the need for a dialogue to be initiated by parliament which, however, remains bitterly divided. In the given circumstances, the president as a part of parliament can play the role of a facilitator or a consultative forum could be created, consisting of a joint committee of the two houses of the parliament. Various proposals were floated in the past to establish a ‘Truth and Reconciliation Commission’. Such a forum, if created, could set the historical record right and make recommendations to strengthen a vibrant federal republic and ensure constitutional rule and the sovereignty of the people.

But in our history such efforts have failed. The real issue is of a neo-colonial autocratic order that refuses to respect the social contract as signed in the form of the 1973 constitution.

The struggle for undiluted democracy, federalism, civil and human rights and freedoms, an independent and secluded judiciary, a free and responsible media and resolution of the civil-military inverse relationship has been long – and it remains unfinished. Besides an intra-institutional dialogue that must take place in one way or the other, there is a need for an inter-institutional discourse too for self-correction.

There is hope that Honourable Chief Justice Khosa will also take stock of the judiciary to ensure due process of justice, efficient delivery of adjudication and judicial reforms. There is a need to reform the recruitment procedure of judges and define the limits of the judiciary in relation to the executive and the legislature. The chief justice has already indicated that there will be certain judicial reforms.

In a federation we need a federal constitutional court, equally representing all federating units, to arbitrate in constitutional, intra-federation and intra-institutional matters. While defending citizens from the excesses of the state, the Supreme Court can also make various institutions of the executive abide by the well-defined limits of their functions and duties. No one should be above the law. And parliament too must discuss Chief Justice Khosa’s suggestions and find a way to address the issues raised by the chief justice of Pakistan.

The writer is a senior journalist. Email: imtiaz.safma@gmail.com

Twitter: @ImtiazAlamSAFMA