New judicial year dawns with old challenges

Next week marks the beginning of the new judicial year and in this regard a ceremony will be held in the Courtroom No 1 on Monday (tomorrow), which will be attended by all judges, Attorney General, and leaders of the Pakistan Bar Council and the Supreme Court Bar Association and lawyers.

Chief Justice of Pakistan Justice Gulzar Ahmed, PBC vice chairman and the SCBA president will address audience.

However, like the previous year, superior judiciary is faced with almost similar challenges in the new judicial year 2020-21. Besides, the situation is getting worse regarding civil liberties in Pakistan, according to the lawyers.

Superior court bars are showing serious concerns regarding “the current state of access to justice, unabated assault on civil liberties and process of accountability leading to increasing public mistrust in the institutions responsible for the dispensation of Justice”.

Recently, Supreme Court Justice Maqbool Baqar, in a judgment, comprehensively discussed a “miserable” situation of civil liberties and “selected accountability” in the country. It was the same issued discussed by former chief justice Asif Saeed Khosa in his address on the eve of last judicial year (2019-20).

Unfortunately, media persons are being harassed and there is no freedom to report facts related to one class of the people. It is also strong perception among the masses that the National Accountability Bureau (NAB) is detaining critics of the government, without proving them guilty.

The current judges in the Supreme Court were appointed or elevated after the lawyers movement for restoration of judges in March 2009. Therefore, heavy responsibility lies on the judges’ shoulder to protect the fundamental rights of the citizens.

In this regard, during tenure of former chief justice Iftikhar Muhammad Chaudhry, from March 2009 to December 2013, the superior judiciary emerged as a strong institution in the country but later allegations of manipulation of the judicial proceedings by executive authorities surfaced.

It is now a challenge for the Supreme Court as to how it restores its previous image of the “most powerful institution”, which could hold everyone accountable. Bar representatives also urge the judiciary to end the perception that there is a rift among judges, otherwise, they warn, external forces will get the opportunity to weaken the institution.

Last judicial year, the apex court’s performance was affected by Covid-19 pandemic situation, as the backlog of cases reached its highest level. Currently, near 45,500 cases are pending in the apex court. Previous data shows that there is a 100% increase in the cases in last seven years.

Since restoration of the top judges in March 2009, the apex court could not evolve comprehensive case management system to clear the backlog. It is learnt that Supreme Court will mainly focus on clearing the backlog of cases in the next judicial year.

The office of the chief justice of Pakistan is pivotal to set priorities of the court. The chief justice has the power to fix cases and form benches. To start the new judicial year, eight benches have been formed to hear cases from next week.

Though superior judiciary has passed directions for the structuring of discretionary powers of various offices, including the prime minister, but nothing significant has been done so far to regulate the powers of the top judge.

During the last 11 years, seven chief justices performed duties in the Supreme Court. Tenure of the most of the chief justice was less than 15 months. Only Iftikhar Muhammad Chaudhry and Mian Saqib Nisar occupied office of chief justice for more than two years.

But their priorities were different and they focused mainly on issues related to maladministration, corruption and construction of water reservoirs. Both are being blamed for encroaching on the executive’s powers.

According to the lawyers, now the public is also aware of the dreadful consequences of the judicial activism. In view of public perception, they said, the superior judiciary should focus more on dealing with its own issues for expeditious administration of justice.

This was reflected in Chief Justice Gulzar Ahmad’s first speech after taking the office on December 20, 2019, that judicial activism would be revised and that eradication of corruption as well as maladministration would be his high priorities.

However, despite giving harsh remarks and observations against the maladministration and the federal government functionaries, the chief justice had not passed any coercive order during the last five months.

Even the Supreme Court had facilitated the federal government in few matters like granting permission to hold general elections in Gilgit-Baltistan (G-B) region and tempered its stance in several cases when the court was requested to show judicial restraint.

On the other hand , the Sindh government faced tough time due to issues related to maladministration. However, no coercive order is passed against it too. Interestingly, the apex court strongly questioned different high courts’ judicial and administrative orders in previous year. SC had also set aside high courts orders regarding release of prisoners.

Former chief justice Khosa had announced to regulate public interest litigation by amending the Supreme Court Rules 1980. Even he had submitted a draft of proposed rules to structure suo motu powers as well as hearing of the constitutional petitions for the enforcement of fundamental rights.

Despite passage of two years, no progress has been made so far in this regard. Similarly, the superior bars want to amend Judicial Commission of Pakistan rules for the improvement of procedure regarding judges’ appointment. It is expected that judiciary will consider the proposals.

Senior lawyers are urging the superior judiciary to check performance of the judges after confirmation of their service. They say that the Supreme Judicial Council (SJC) should issue show-cause notice to those judges whose performance is unsatisfactory under Article X of the Judges’ Code of Conduct.

According to the article, a judge should take all steps to decide cases within the shortest period of time and make every effort to minimise the suffering of litigants by deciding cases expeditiously through proper, written judgements. “A judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault,” it reads.

Former chief justice Asif Saeed Khosa, being the then SJC chairman, had issued show-cause notices to a few judges over the violation of Article X. however, since his retirement, no notice is issued to any judge.