The Supreme Court on Thursday proposed that President of Pakistan should hold an inter-institution dialogue at the summit level to take stock of 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.
"With the approval and support of my colleagues, I propose holding of an inter-institution dialogue at the summit level and would request the President of Pakistan to convene a meeting and chair the deliberations," said Chief Justice-designate Asif Saeed Khan Khosa in a Full Court Reference held in honour of the retiring Chief Justice Mian Saqib Nisar.
"Such a summit may be attended by the top parliamentary leadership, top judicial leadership and top executive leadership including the military and the intelligence agencies," he further proposed. He stated that 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.
"Let us admit that in the recent past there has been a trust deficit between different organs of the State. There is no gainsaying that all the three organs of the State - 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.
"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," said Justice Khosa while delivering his written speech.
"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 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 destabilising 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," said the Justice Khosa.
He said that it needs to be realised 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.
He said the 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 in a three-tier judicial hierarchy, a right of appeal may be provided against all orders or judgements 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.
Justice Khosa said 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.
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, he said.
Justice Khosa said that in order to minimise the chances of adjournments modern technology shall be utilised and a possibility shall be explored regarding establishing video links between the Branch Registries of this Court and the Principal Seat through which the 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.
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. Successive governments have failed to suitably increase the number of judges and magistrates on account of financial constraints. Three thousand judges and magistrates cannot handle 1.9 million cases even if they work for "36 hours a day," he said.
Justice Khosa 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."
He said 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.
He said 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.
He recommended that shorter formats of judgments and orders ought to be introduced so that time of the courts is not wasted in writing unnecessary details. For constitutional cases of national importance, he suggested that 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.
Justice Khosa suggested that the legislature should attend to unnecessary or problematic laws which are ought to be repealed or suitably amended. He said in case of failure of the legislature, such laws may be judicially scrutinised. Justice Khosa paid tribute to retiring Justice Saqib Nisar. Attorney General for Pakistan Anwar Mansoor, President Supreme Court Bar Association Amanullah Kanrani, and Vice-Chairman Pakistan Bar Council Kamran Murtaza in their speeches also paid tributes to the outgoing CJP Mian Saqib Nisar and expressed concern over expanding suo motu jurisdiction under the Article 184(3) of Constitution.
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