Challenges before the new CJP

“….the trial of civilian protesting……in .incidents of the 9th and 10th of May 2023 may be proceeded strictly under the relevant criminal laws applicable to civilians; but there is nothing on record to even suggest that they so acted with the intention or object of causing damage to the defence of Pakistan or that their alleged acts relate to such work or affair of the Armed Forces which form an integral part of the core function of defending Pakistan against external aggression or threat of war so as to come within the preview of section 2(1)(d)(ii) of the Army Act—Justice Yahya Afridi in CP No. 24 of 2023 [Jawwad S. Khawaja v Federation of Pakistan 2024 PLD 337 Supreme Court]

Mr Justice Yahya Afridi on taking oath of 30th Chief Justice of Pakistan (CJP) on October 26, 2024, for the next three years [till October 25, 2027], made some praiseworthy moves for ending the most undesirable practice of constituting the benches of “like-minded” judges, and restoring the original composition of the Supreme Court Practice and Procedure Committee that was modified by the outgoing CJP Justice Qazi Faez Isa in the wake of Supreme Court Practice and Procedure Amendment Ordinance 2024.

The former CJP Qazi Faez Isa for pleasing some hidden hands and reversing the judgement on Article 63A excluded his author Justice Munib Akhtar from judges’ committee and replaced him with Justice Amin-Ud-Din Khan, who then stood fifth on the seniority list.

Since this reshuffle destroyed the very spirit of the Supreme Court (Practice and Procedure Act), 2023 that was approved by the Full Court by an overwhelming majority. Qazi Faez Isa by doing so disowned his own stance. Thus, stern stand of not attending the maneuvered committee by Justice Syed Mansoor Ali Shah was fully justified.

The inclusion of Justice Munib Akhtar in the Practice and Procedure Committee and summoning of full court meeting on October 28, 2024, attended by all, Justice Syed Mansoor Ali Shah through video link, made it clear that the new CJP would not succumb to popularism or outside pressures.

Justice Yahya Afridi, sober, dignified and independent-minded judge, as 30th CJP is going to enforce fundamental rights of citizens, ensure rule of law, and disposal of pending cases. As the Press release of full court meeting shows, he, along with all judges, is determined to undertake the much-needed and long-delayed reforms to revamp the rotten and outmoded judicial system, worst expression of our colonial heritage. Indeed, Justice Yahya Afridi possesses in-depth knowledge of maladies faced by our justice system, if one calls it so, and has the will, competence and determination to remove them.

It is about time the new CJP initiated long-delayed fundamental structural reforms in the existing judicial system. His profile on Supreme Court’s website mentions: “Justice Afridi became the first judge from the Federally Administered Tribal Area to assume the office of the Chief Justice of the Peshawar High Court when he took oath on 30th December 2016. He served in that office until his elevation as a Judge of the Supreme Court of Pakistan on 28th June 2018”.

The most serious issue pending in the Supreme Court is related to many innocent persons, kept in solitary confinements, facing military trial for alleged involvement in the ghastly incidents of 9th and 10th May 2023 about which Justice Yahya Afridi and other judges have already given a categorical finding in Jawwad S. Khawaja v Federation of Pakistan [2024 PLD 337 Supreme Court], reproduced in the beginning of the article.

The fate of those, who held could not be tried under military courts, in Jawwad S. Khawaja v Federation of Pakistan [2024 PLD 337 SC], suspended by 5-1 on December 13, 2023, should be on top priority of the Supreme Court as it relates to fundamental right of citizens under Article 10A of the Constitution

While maintaining the Constitution’s supremacy that is a sanctimonious document representing and expressing the supreme will of the people, the Court should also ensure quick disposal of conflicts pending with them. Our existing judicial system, dating back to the colonial era, has not changed except devastating patchwork of the so-called Islamic laws and establishment of Federal Shariat Court by General Ziaul Haq. Two conflicting legal systems have not served any useful purpose for dispensation of justice and the maxim ‘justice delayed is justice denied’ most aptly describes the essence of our prevalent judicial system.

No doubt, the apex court and high courts are constitutionally obliged to curtail arbitrary exercise of powers by any organ of the State, as their main role is protection of fundamental rights of citizens under all circumstances. It should remain their first and foremost duty under the constitutional benches.

Tragically, our courts are still following outdated procedures and methods whereas many countries have adopted e-system for filing of cases and their quick disposal through fast-track follow-up using offices of magistrates at grass root levels.

The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, there would be no need for enormous litigation. The principles underlying judicial reforms should not mean forcing unnecessary litigation and then its quick disposal but to help reduce its occurrence in the first instance.

It is highly lamentable that presently the federal and provincial governments are the main litigants. The government functionaries usurp the rights of people and drag them in courts. The new CJP should establish a commission to determine reasons for this morbid state of affairs and give concrete proposals to end the causes of undue litigation.

Copyright Business Recorder, 2024