ISLAMABAD – Former foreign minister Khurshid Mahmud Kasuri has written an open letter to the new Chief Justice, Asif Saeed Khan Khosa in which he has congratulated the top judge on assuming office and expressed his hope that in view of the new CJP’s academic background and legal track record, he will exercise restraint with respect to the application of Article 184(3).
Kasuri writes to the CJP that his views are not new and that he stood by what he had stated in his book, ‘Neither a Hawk, Nor a Dove’ published in 2016 (pages 452-475) that there are genuine cases of executive and legislative failure which require the Court to enforce fundamental rights in matters of public importance.
He opined that the Supreme Court may only as a last resort justifiably exercise its suo motu powers as per the Constitution’s Article 184 (3). He has 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.
He says in his letter that whereas he respected former Chief Justice Mian Saqib Nisar’s reputation for integrity, legal expertise and well-meaninginess, but, even well-meaning actions, unless completely and thoroughly thought through, can wreak disastrous consequences. He points 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 the former chief justice Iftikhar Chaudhry, Kasuri added that there were complaints from senior bureaucrats that he interfered in their work excessively, he 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 ex-CJP Nisar’s tenure has also caused near-paralysis in the bureaucracy and almost a pen-down strike.
He added that ‘trial by the media’ became a constant complaint during his tenure. Replicating CJP Iftikhar Chaudhry’s playbook, CJP Saqib 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. This, he added, was not what is envisaged or the norm in a constitutional democracy. The proactivity of Chief Justice Nisar in political and economic affairs is discounted with his own acknowledgment, “I admit openly that I have been unable to put the house in order.”
Kasuri referred to judicial decisions in the Pakistan Steel Mills (PSM), Reko Diq and Rental Power Plant (RPP) case. He recalls 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 Foreign Minister 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.’
Regarding the attitude of the former chief justice towards lawyers, litigants or even those who happened to be present at the court, Kasuri said that there were complaints galore. He referred to how harshly he treated respected journalist of unimpeachable integrity Hussain Naqi in his late 80s and addressed him as ‘tum’! Kasuri said he was shocked as was the entire journalist community 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 judgments. 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!”
Kasuri said he was rendered speechless when recently a very well-known senior advocate of the Supreme Court told him that while CJP 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, the Chief Justice said words to the effect that “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 notes that ‘judges are not supposed to be known by the example of their power. Rather, their respect emanates from the quality and meticulousness of their judgments.’
In the end, Kasuri prayed for Chief Justice Asif Saeed Khan 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 judgments with pride. ‘Only sound judgments stand the test of time’, Kasuri concluded.
