06/01/2014
Mr. Jillani, the Honourable Chief Justice of Pakistan, carries with him the image of ‘a gentleman judge’. He is progressive, hardworking and firm in dispensation of justice. While the nation welcomes Mr. Jillani as the new CJP, he is confronted with many challenges by virtue of his position.
Mr. Chaudhry, the former Chief Justice of Pakistan has left behind a certain public image and legacy, though his image is not flawless and his legacy is not beyond criticism, its existence is a reality. Although a section of educated middle class recognizes it unfair to draw a comparison between Justice Jillani and his predecessor simply for the reason that Justice Chaudhry had a fairly longer term to serve as CJP, to build his public image and to develop his legacy in comparison to Justice Jillani who barely has a few months to act in that position, by and large the public would continue to be judgmental about it.
Having known Mr. Jillani for quite some time now, both as a judge of the Lahore High Court and the Supreme Court, it is certain that the thought process,personality and the image that he likes to carry is much different from that of his predecessor. There is not a single occasion when I have seen a law officer, a litigant, an investigating officer, a bureaucrat or a politician being humiliated or insulted in his Court. At the same time, one comes across firmness in his attitude to dispense justice that has gained further strength over the years.
Mr. Chaudhry, on the other hand, proceeded with matters before him mostly on the assumption that the state has collapsed and that it was for his Court to fix it as the ultimate saviour. Therefore, while exposing the incompetence, partiality and contradictions in the stance taken by various investigating agencies, public servants, security agencies etc., his court would act in an inquisitorial mode to investigate facts in every other case before it.
Conversely, Justice Jillani, through his judgments, has been emphasizing on the philosophy of judicial restraint keeping in view important constitutional value of the trichotomy of powers as also the canons of fair trial, particularly Article 10A, thereby questioning the very assumption of his predecessor. Be that as it may, there are fundamental questions inviting debate: whether the state in Pakistan has collapsed? Even if it has, whether the judicial system has escaped such a collapse? Can judiciary legitimately claim a role and responsibility to fix it all? Does it have the capacity to fix it all? Amidst all these difficult questions, Justice Chaudhry succeeded in creating his public image of being a powerful Chief Justice, although his popularity has diminished to some extent since his son’s case surfaced.
Mr. Jillani must identify a couple of goals and pursue those with maximum devotion to leave behind a positive legacy on his superannuation.
Amongst other things, Justice Chaudhry’s popularity was associated with expansion of judicial power to question power corridors, be that legislature, executive, security apparatus and intelligence agencies. He could enjoy exercise of such powers essentially for the reason that during the period between 2008 and 2013, there was a political division over some issues of national importance and his judicial intervention enjoyed support of one of the two major political parties in the country. Post May 2013 elections; there is a virtual consensus between the said political forces over almost all major issues (with PTI being the only significant opposition). There is now little room available for any effective and successful judicial intervention. Mr. Chaudhry’s attempt to obtain a short date for the holding of elections for local bodies not only failed but also backfired resulting in the instant passage of a resolution in the NA against extension of his tenure. Mr. Jillani, the Chief Justice being an otherwise cautious judge exercising restraint in view of his commitment with trichotomy of powers, is unlikely assume risks in the areas without strong political divide or major public dissent.
Likewise, in response to the judgment of the Supreme Court in the missing persons case announced just before superannuation of Mr. Chaudhry, the federal and provincial governments are considering to provide a new legislative cover to the security apparatus enabling them to detain persons without trial. For the next few months at least, this will shift the focus of Supreme Court proceedings away from recovery of detainees, towards constitutional validity or otherwise of the legislative instrument, and may well consume the tenure of Mr. Jillani as CJP.
There is, however, likelihood of judicial intervention in blatant cases of misuse of authority on part of executive; although having heard Mr. Jillani’s speeches and read his judgments, one can speculate that the frequency of his intervention, the manner of proceedings and the scope of his decisions are likely to differ from his predecessor’s. So what other options does Mr. Jillani have in his short tenure? Following are a few suggestions, in my opinion, available to him.
The attempt made by the new CJP, if any, to rectify the increasing public perception that the institution of judiciary is beyond accountability, can substantially improve image of the institution of judiciary and strengthen it. While it may take some time to make the institution of Supreme Judicial Council (SJC) effective, the perception that the institution has been made functional can be built by small public confidence building measures, such as disclosure of information regarding the total number of complaints received by SJC over a certain period of time and status thereof, which fulfills the requirements of Article 19A, can be good starting point. At the same time, it is essential and in the public interest to withhold information about the nature of any particular complaint so as to avoid scandalizing of the judge for as long as he serves on the bench.
Likewise, there is a frequently voiced complaint in the bar rooms against some of the judges having performance below average in terms of efficiently disposing of cases or their quality of decision making. Ideally, an effective check should be employed at the stage of confirmation of an additional judge to be appointed as permanent judge, however, an appropriate amendment of the code of conduct for judges enabling the SJC to remove such High Court judges, with prior warning, may be welcomed by the bar as well as the public at large.
Avoidance of the perception of marginalisation of dissenting views, by structuring the administrative powers of the chief justice to constitute benches and fix cases before the same, in particular matters of public importance falling under Article 184(3) of the Constitution, is essential to reduce criticism against judiciary and elevate image of the judiciary. Such structuring may involve fixation of all cases under Article 184(3) before a Bench of five or more senior most judges to allow the dissenting voices, if any, on the bench.
Mr. Jillani, the Honourable Chief Justice of Pakistan, needs to focus on the development and expansion of Human Rights jurisprudence in Pakistan. There has to be a special emphasis on the promotion of access to justice to all segments of the society particularly the week, vulnerable and deprived segments elements such as poor, women, children, minorities and persons with disabilities. This indeed has to be the primary focus of all future Chief Justices of Pakistan, if the judicial system is to establish and protect its legitimacy. Besides a more serious and systematic attempt for making the courts at district level more functional, Mr. Jillani might have to play a role in the establishment of new benches at the division level in the province of Punjab, to ensure justice at doorstep for the litigants who are frequently required to travel 100 kms or more only to hear that their cases have been adjourned or could not be taken up due to paucity of time. With deteriorating standards in the district judiciary, owing to its susceptibility to pressures and influences from the powerful, High Courts and the Supreme Court keep the hope of consumers of justice alive, and the increase in financial costs associated with a centralized and distant High Court restricts that access.
Mr. Jillani’s place in the history as the Chief Justice of Pakistan shall depend upon his vision, his success in sharing that vision with his fellow judges, and effectiveness of the court that he heads in implementation of that vision. The nation is looking up to him for the performance of his new role.
Written by : Inayatullah G. Morio Advocate Supreme Court of Pakistan and Former President High Court Bar Association Larkana
