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In his speech at the opening ceremony of the new judicial year 2019-20 on September 11, 2019, Chief Justice of Pakistan (CJP) Asif Saeed Khan Khosa made some pertinent and thought-provoking comments on national affairs. First and foremost, the CJP warned that the growing dangerous perception of the ongoing (lopsided) accountability process being seen as part of political engineering (with which we are all too familiar in our history) needs urgent remedial action if the whole accountability regime is not to lose all semblance of credibility. The CJP went on to underline that the bench and the bar together would resist with their fullest might any attempt from any quarter to damage or destroy the ideals of constitutionalism, rule of law and democracy. In recent times, the leadership of the bar has repeatedly voiced concern over the receding political space in the governance of the state. Such concerns, the CJP emphasised, cannot be ignored as they may not augur well for the future of constitutional democracy. Recovery of stolen wealth, he said, was a noble cause but if in the process constitutional and legal morality and recognized standards of fairness and impartiality are compromised, this loss may pose an even bigger challenge in future. The CJP referred to the voices being raised against muzzling of the print and electronic media and suppression of dissent, and argued that a voice suppressed or an opinion curbed generates frustration and discontent, which could pose a threat to the democratic system. The CJP was not expected to, nor did he go into whether the current dispensation answers to the description of a legitimate democracy. He may, had he chosen to do so, answered the question why these repressive trends are in evidence today. On the issue of the references before the Supreme Judicial Council (SJC) against Justices Qazi Faez Isa and K K Agha, the CJP set the record straight by delineating the record of such references before the SJC, their disposal, and the pendency of some references (especially these two) that have been challenged in the Supreme Court. The leitmotif of his court, the CJP said, was not judicial activism (that had become the norm since former CJP Iftikhar Mohammad Chaudhry's tenure) but active judicialism (whose meaning is not clear, nor did the CJP attempt to explicate it beyond question). Significantly, in the context of judicial activism, the CJP mused that the very people who were agitated in the past by the use of suo motu powers by the superior courts were today complaining about its non-use or restraint in this regard by the present courts. He explained that suo motu powers should only be used, and that too with the utmost restraint confining it to issues of national importance, in the light of Article 184(3), not on some interested party's demand. The CJP expressed regret that his suggestions for a three-tier judicial system that does away with special courts, amending or repealing unnecessary and problematic laws and an inter-institutional dialogue on these and other issues had yet to be given attention by the government. Last but not least, the CJP reminded us of the unresolved issue of missing persons.

While all that CJP Asif Saeed Khosa said in his address points to the flaws and inadequacies of our judicial and other systems, it may be commented that the CJP has expressed himself rather late on these issues, a bare three months before he is due to retire. However, it could be said that in this case too, better late than never. The superior judiciary too has much to answer for in our history, including serving at times as the handmaiden of martial laws, dictatorship and anti-democratic dispensations. If a fresh wind is now blowing through the hallowed halls of justice as reflected in CJP Khosa's remarks, we hope this is not a straw in that wind but rather will become the philosophy and moving spirit of the judicial system, a development that would have a positive impact on our democracy too.

Copyright Business Recorder, 2019

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