–Former foreign minister says ‘trial by media’ constant complaint during Justice Nisar’s tenure
—Asks incoming chief justice to exercise suo motu powers with restraint
LAHORE: Former foreign minister Khurshid Mahmud Kasuri wrote an open letter to the incoming Chief Justice of Pakistan (CJP) Asif Saeed Khan Khosa in which he has congratulated him on assuming office and expressed hope that in view his academic background and legal track record, he will exercise restraint with respect to the application of Article 184(3): Original jurisdiction of Supreme Court.
In his open letter, Kasuri said he hopes that Justice Khosa will leave a legacy which will make the following generations of lawyers and judges look up to his judgements with pride. “Only sound judgements stand the test of time,” he added.
The ex-foreign minister suggested that there are genuine cases of executive and legislative failure which require the top court to enforce fundamental rights in matters of public importance. He opined that the Supreme Court may only justifiably exercise its suo motu powers as per the constitution’s Article 184 (3) as a last resort.
He hoped that the new chief justice will not condone its sweeping scope and unbridled use which undermines the functioning of lower courts, and cannot be squared with the constitution’s Article 10-A due process guarantees or with rights of appeal.
Kasuri clarified that whereas he respects Justice Mian Saqib Nisar’s reputation for integrity, legal and expertise; however, even well-meaning actions, unless completely and thoroughly thought through, can wreak disastrous consequences. He pointed out that it does not require a sage to predict that such impulsive, impetuous and “popular actions” cannot stand the test of time nor defy the laws of economics.
Recalling the tenure of former CJP Iftikhar Chaudhry, Kasuri added that there were complaints from senior bureaucrats that he interfered in their work excessively, and had a habit of summoning them and then making them wait for hours, wasting their productive time besides compromising their dignity. “This attitude which continued during CJP Nisar’s tenure has also caused near-paralysis in the bureaucracy and almost a pen-down strike,” he wrote.
Kasuri said “trial by the media” has become a constant complaint during the tenure.
“Replicating Iftikhar Chaudhry’s playbook, Justice Nisar ushered in a reign of suo motu driven judicial activism and remained in the news 24/7, often grabbing top headlines. Perhaps he made more news than the Prime Minister! It appeared that neither the executive nor the parliament mattered. The civil government cannot, it seems, even fix the date for Mohmand Dam’s inauguration,” Kasuri said. “This was not what is envisaged or the norm in a constitutional democracy. The proactivity of Justice Nisar in political and economic affairs is discounted with his own acknowledgement.”
Referring to the judicial decisions in the Pakistan Steel Mills (PSM), Reko Diq and Rental Power Plant (RPP) case, Kasuri wrote that the time when he was trying to attract the Russian government on tripling the capacity of steel mill and had very useful discussions with his Russian counterpart Sergey Lavrov who showed great keenness in the project.
“The Court’s decision put an end to all such efforts. As it is, the court’s decision has swelled the Steel Mill’s losses to over Rs. 200 billion and counting! Meanwhile, the Court’s decisions in RPP and Reko Diq cases have been disregarded by international arbitration awards, imposing on Pakistan damages of $700 million in the RPP matter and potentially exposing it to damages of astronomical amounts in the Reko Diq matter,” according to the letter.
ATTITUDE IN COURT:
Kasuri said that there are a great number of complaints regarding Justice Nisar’s attitude towards lawyers, litigants or even those who happened to be present at the court.
“How harshly he [Justice Nisar] treated respected journalist of unimpeachable integrity Mr Hussain Naqi in his late 80s and addressed him as ‘tum’,” he recalled and said he and the entire journalist community was shocked at this.
Kasuri pointed out the desire of two former chief justices to remain in the media 24/7. He said that it is well-known that judges should lead the life of a recluse; perhaps, for this reason, the names of the judges in England did not appear in a telephone directory. He said it is axiomatic that that judges best speak through their judgements.
In his letter, he has referred to Islamic and Western approaches regarding qualities and conduct of judges and quotes, inter-alia, Hazrat Ali (RA), Thomas Hobbes and Judge Richard A. Posner who has said, “Beware…the angry judge!”
The former foreign minister said he was rendered speechless when recently, a well-known senior advocate of the Supreme Court told him that while Justice Nisar was about to take a decision. The lawyer concerned pointed out that what the chief justice was contemplating could not be supported by law, Kasuri wrote, at which Justice Nisar said, “It is law if we say it!”
Kasuri also refers to the recent spate of contempt notices either threatened or actually issued against various people. He noted, “Judges are not supposed to be known by the example of their power. Rather, their respect emanates from the quality and meticulousness of their judgements.”
In the end, Kasuri prayed for incoming CJP Justice Khosa’s success and hoped that he will leave a legacy which will make the following generations of lawyers and judges look up to his judgements with pride. “Only sound judgements stand the test of time,” Mr Kasuri concluded.