Focus of CJP-designate on population spurt

ISLAMABAD:

Chief Justice of Pakistan-designate Umar Ata Bandial on Tuesday said the Supreme Court, while exercising suo motu jurisdiction, would back initiatives to control the alarming growth of population in the country.

"Pakistan is a developing country. It suffers from a mushrooming population which in turn has left it vulnerable to social and economic pressures that are typically faced by similarly situated countries,” he added on the occasion of farewell full reference in the honour of outgoing CJP Gulzar Ahmed.

“These include poor health and education facilities, low productivity, unskilled labour, unemployment and therefore poverty.”

The CJP-designate, who is expected to be sworn in today (Wednesday), noted that to tackle the myriad problems facing Pakistan, all concerned stakeholders needed to come together to address the core issue, namely, the alarming rate of population growth.

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“In this respect, we had a conference in 2018. Other steps to be taken by the federal and provincial governments to overcome the challenges facing Pakistan include creating state of the art vocational training institutes to impart skills-based learning to the youth, increasing revenue generation by expanding the tax base, and empowering statutory and public institutions to effectively perform their role under the Constitution and the law.”

The CJP-designate pointed out that these matters concerned the essence of fundamental rights of the bulk of our population.

“Therefore, the court would be keen to engender initiatives in these areas whenever its backing is required.”

Senior lawyers believe that the observations of the incoming CJP reflect as to how he would exercise public interest jurisdiction under Article 184(3) of the Constitution during his tenure.

However, they say that these portions of his speech also reflect that he will resume the agenda, initiated by former CJP Mian Saqib Nisar, by exercising suo motu jurisdiction.

The lawyers say that a number of SC judges in their judgments had already held that invoking original jurisdiction in such matters is 'judicial overreach'.

In his speech, Justice Bandial said the differences in our opinions in matters of law arose from our individual perceptions.

“This diversity brings richness to our understanding. That is how yesterday’s minority view may become tomorrow’s majority judgment,” he added.

“But we are surprised that some observers, who discharge a noble duty as a watchful media, particularly members of the social media, take it upon themselves to scandalise judges rather than focusing on the criticism of their judgments.”

Justice Bandial observed that such conduct was “unprofessional” and “uncivilised”, quite apart from being unconstitutional.

“Please understand that something has to be done about it. We will have to ask the Bar to help before we act in the matter,” Justice Bandial remarked while addressing Supreme Court Bar Association (SCBA) President Ahsan Bhoon, who was present in the courtroom.

The CJP-designate also said the court must continue to exercise its jurisdiction and perform its duties under the Constitution and the law with greater vigour.

“The entire judicature faces the problem of backlog of cases for which extraordinary efforts by all the courts are required. At all levels in the hierarchy of courts, case management techniques need to be adopted for bringing efficiency in the performance of the institution as a whole.”

He suggested that all courts, including the SC, should undergo performance audits so that they could identify and remedy their weaknesses.

“One problem that is easily identifiable is the large number of frivolous disputes that clutter the court system. Their entry must be checked or else these should be put to the ADR [alternative dispute resolution] mechanisms. There is great room for resolution of civil disputes through ADR. These methods in addition to hard work by judges and counsel, shall Insha’Allah reduce the backlog of cases and give hope. Most of these tasks require expert input so the court system will have to shed some of its insularity."

In the criminal context, he noted, failed prosecutions were the result of faulty investigations and failure to collect valuable evidentiary material. “Better training and improved coordination of investigation and prosecuting authorities will enable them to bring successful prosecutions to the courts. As these functions are integral to the justice system, the courts must participate in promoting these measures.”

Paying tribute to the outgoing CJP, Justice Bandial said Justice Gulzar was appointed as the 27th chief justice of Pakistan on December 21, 2019.

Also read: Justice Gulzar leaves behind a mixed legacy

“At that time, two challenges confronted the Supreme Court. The first was the initial brunt of the Covid-19 pandemic being felt by Pakistan and the rest of the world. Over the course of his Lordship’s tenure, the harmful effects of this pandemic worsened leading ultimately to recommendations by the federal government to close offices and workplaces. The courts in the country thus faced a difficult choice: either to close their doors to litigants in line with government advice [which would have added to delay in the dispensation of justice and an increased pendency of caseload] or to shoulder through the perilous time by continuing to perform their constitutional duty to the people of Pakistan.”

The CJP-designate noted that under Justice Gulzar’s firm resolve, the Supreme Court kept its doors open throughout the Covid-19 pandemic. “Nevertheless, at the height of the pandemic, to ease the difficulties of the litigant public, the court relaxed the onset of bar of limitation by announcing the deemed closure of its institution branch from March 28, 2020 until May 31, 2020.”

Justice Bandial observed that during the pandemic, eight judges, including Justice Gulzar himself, contracted Covid-19, but the decision to keep the court open was maintained.

“The Supreme Court hastened its efforts to make the court digitally or virtually more accessible to advocates and litigants alike by doubling the capacity of its video link system. A total of 4,143 cases have been taken up or heard via video link during his Lordship’s tenure. Requests by advocates for video hearing -- in which one or both sides in a case address judges at the principal seat from a Branch Registry -- have grown steadily after the acquisition of new software licenses. These have enhanced the video and audio reception of the video link proceedings resulting in smooth and uninterrupted hearings."

Justice Bandial pointed out that the second challenge that confronted the court when Justice Gulzar assumed the office of the CJP was the pending constitutional petition filed by one of our “brother judges” against the presidential reference No 1 of 2019.

“This matter was heard over 17 months by a larger bench of 10 judges and finally ended on April 26, 2021. It was spread over approximately 60 dates of hearing. On these dates the regular cause-list of the benches would have to be curtailed for the larger bench to proceed. The obvious setback to the court was the accumulation in its caseload. During this period, the backlog of around 42,000 cases in December, 2019 rose to around 50,000 cases in April, 2021. Clearly, the remaining 6-7 Judges on the court had a herculean task to perform.”

However, he added by the grace of the Almighty, the court toiled hard, sometimes by working long hours for months and other times by disregarding health concerns to arrest the accretion in the backlog of cases.

“Unlike the common perception, almost every judge worked during the vacations, whether in summer or winter, to hear and decide cases in accordance with law and Insha’Allah we will continue to do so to clear the backlog."

Justice Bandial observed that Justice Gulzar, during his tenure as the CJP, had also remained strongly critical of conversion and appropriation of public lands for wrongful private use.

"Whilst exercising original jurisdiction in Human Rights Case No.13316-P 0f 2018 and Niamatullah Khan Advocate Vs. Federation of Pakistan, he [Justice Gulzar] identified the plague of private and public entities converting public land to private ventures and ordered the retrieval and restoration of the same. These actions, although rooted in law, received a mixed reaction because the orders failed to identify and punish the actual perpetrators and the officials responsible for illegally authorising the conversion of public lands."

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SCBA President Ahsan Bhoon in his address lauded the SC’s detailed majority judgment wherein Justice Qazi Faez Isa and others review petitions were accepted.

Bhoon also urged all SC judges to endorse Justice Yahya Afridi’s opinion against Law Minister Dr Farogh Naseem and others regarding violation of section 216 of Income Tax Ordinance 2001.

The SCBA president also wondered as how Sindh High Court Chief Justice Ahmed Ali Sheikh was working on his post after his notification as an ad hoc judge of the apex court.