In the backdrop of harsh words exchanged between apex court judges in the Justice Qazi Faez Isa case, the country's top law officer on Friday said the “true strength of an institution lies in its unity as people who are divided are easier to control”.
"Whether it be a family, an institution or a country, the true strength lies in its unity,” Attorney General for Pakistan Khalid Jawed Khan noted in his speech delivered on the eve of the full court reference arranged in connection with the retirement of Justice Manzoor Ahmad Malik.
“People who are divided are easier to control and once control is voluntarily ceded or forcibly snatched, the family, the institution or the country loses independence,” he added.
“Yet unity is not a synonym for unanimity. Dissent and difference of opinion, more so in a legal and intellectual context, is not a symbol of weakness or disunity. It is rather a hallmark of a dynamic society and essence of democracy.”
The AGP in his speech referred to Maurice Kelman, a Professor at Wayne State University, who wrote that ‘Anglo American appellate courts are neither perfectly collegial nor purely individual tribunals. Court of last resort in some European countries, particularly those influenced by French practice, proceed in all instances collectively, corporately…. Public dissent is unknown. No matter how dissimilar the judges may be in temperament and outlook, they are united on the need to foster the myth of law’s impersonality and inexorability’.
However, the AGP said unlike continental courts, the courts in common law jurisdictions including Pakistan, there was quite often plurality of views expressed in tones differing in resonance or even outcome.
“Yet the fact remains that in the end it is not the judgment of the individual judges or majority judges but the judgment of the court,” he observed.
"Intellectual confrontations leading to dissenting views expressed even with most vociferous content and tone are the hallmark of a vibrant common law tradition"
The AGP said as Charles Evans Hughes, the former chief justice of the US, aptly observed that ‘a dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed’.
“It is heartening to see that on this momentous occasion, the leadership of the court is entrusted in the hands of the chief justice who has encouraged robust debate on important issues including appointment of judges by the Judicial Commission,” the AGP noted.
“On both sides of his Lordship sit extraordinary legal minds in whose secure hands rest the hopes and aspirations of the people of Pakistan. The legal fraternity nurtures sincere and justified hope that under their statesman like stewardship, this Court will sail through stormy waters and emerge with far greater strength and unity guaranteeing its independence which is the last bastion of rule of law and fundamental rights of the people.”
The AGP further said that there were still more mundane but no less compelling issues which deserve immediate attention of this court.
"The foremost being the prolonged pendency of cases before the courts that seriously undermines confidence of public more than any other issue. While the pandemic seriously jeopardised the normal functioning, a more focused and sustainable response to this menace is immediately warranted. There is also lack of diversity in the judiciary. More women and members of the minority must be inducted in superior judiciary on immediate basis as their absence materially affects the functioning and reputation of the institution.”
The AGP drew the judges' attention to the original power conferred on the court under Article 184(3) of the Constitution.
“This power has been exercised by the present court with great caution and most sparingly. For this reason also, this may perhaps be the most opportune moment to consider and provide some objective guidelines and mechanism by your Lordships for its exercise in future so as to obviate the possibility of recurrence of its excessive use, which in hindsight, might have resulted in consequences not wholly beneficial for our jurisprudence as well as the institution.”
Retiring judge Manzoor Ahmad Malik in his speech observed that the criminal justice system needed drastic changes to assuage the sufferings and miseries of the convicts, who at times served major part of their sentence awaiting disposal of their appeals. “There should be some mechanism in place for the prompt decision of the case,” he added.