'Suo motu notices to be taken sparingly,' says Justice Khosa at full court reference for CJP Nisar
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A full court reference in honour of the retiring Chief Justice of Pakistan, Mian Saqib Nisar, was held in Court No. 1 of the Supreme Court on Thursday.
The ceremony in Islamabad was attended by all Supreme Court judges — with the exception of Justice Mansoor Ali Shah — as well as Attorney General of Pakistan (AGP) Anwar Mansoor, Vice Chairman of Pakistan Bar Council (PBC) Kamran Murtaza, retired senior judges as well as senior journalists, among others. Justice Nisar's family was also in attendance.
While addressing the gathering, Justice Nisar said the top court has passed many landmark verdicts. "First is the Gilgit-Baltistan's verdict."
"Supreme Court took notice of the scarcity of water in the country. The entire nation gave donations to solve the crisis. Second issue the court picked up was that of population growth," he said.
"[Judiciary] worked for the rights of the downtrodden, granted overseas Pakistanis the right to vote and gave every person the right to live with dignity. Court also took notice of private hospital charges, issuance of national identity cards by National Database and Registration Authority (Nadra) to transgenders.
"The court also took notice of Tayyaba torture case as well as the issue of children working as domestic servants.
"[I] tried to return the respect given by the people and tried to solve the issues plaguing sectors of health and education, both of which are rights granted to citizens by the Constitution.
"The role of a judge is never easy, I am aware that the decisions we make shape not just the day to day lives of individuals, but have the potential to mould the lives of generations to come.
"Fear has no place in a judge’s life, nor does the fear of opposition bring so much as a wrinkle on his forehead, for his only duty is to the Constitution and the people for whom he stands as a beacon of justice
"I worked within the code of conduct for judges and it has been my honour to have served the nation."
The CJP thanked his fellow judges; "those who have laid down their robes and those who grace the bench with me today, for always extending their unqualified support to me in all my efforts in dispensing justice and for working tirelessly round the clock".
"I am also grateful to the employees of the Supreme Court and particularly each and every member of my staff, all of whom have invested long hours with me.
"I am highly indebted to my beautiful family [...] I would not be here today if it were not for you all."
'Suo motu notices to be taken sparingly'
Addressing the full court reference, chief justice-designate Justice Asif Saeed Khosa said that he had been working alongside Justice Nisar for 20 years but will now have to part ways as per the law.
He said that the outgoing chief justice had faced many constitutional, societal and political challenges during his tenure and headed the judiciary in "very difficult circumstances".
Justice Nisar's services for humanitarian causes will be remembered, he added.
Read the full text of Justice Khosa's address here.
Outlining his plan for his upcoming tenure as top judge, Justice Khosa said that he will ensure the quick dispensation of justice.
Referring to Justice Nisar's efforts to raise donations to build the Diamer-Bhasha dams, Justice Khosa said that he too he wanted to build a dam.
"Mian Sahib had once observed publically that he is left with only two ambitions in life, i.e. to build dams and to retire the national debt.
"I would also like to build some dams, a dam against undue and unnecessary delays in judicial determination of cases, a dam against frivolous litigation and a dam against fake witnesses and false testimonies and would also try to retire a debt, the debt of pending cases which must be decided at the earliest possible.
"Currently there are 1.9 million cases pending in courts. Three thousand judges cannot dispense of so many cases," Justice Khosa noted.
"The power to take suo motu notices will be used sparingly," said the incoming CJP, "and only in respect of larger issues of national importance where either there is no other adequate or efficacious remedy available or the available constitutional or legal remedies are ineffective or are rendered incapacitated".
Speaking on the role of other courts, the SC judge said: "The trial of a civilian in a military court is considered wrong across the world. It is said that military courts take less time to issue verdicts. Civilian courts should try to resolve cases in a short period of time. High courts should exercise powers within their jurisdiction."
"When has the judiciary interfered in the matters of other institutions?" Justice Khosa asked. "Army and intelligence agencies should not interfere in civilian matters."
"The job of the parliament is to legislate, not provide development funds. Transfers and postings are not among the parliament's duties either."
PBC's Vice Chairman Murtaza, while speaking at the ceremony, said that Justice Nisar had availed the authority granted to judiciary under Article 184(3) (Original jurisdiction of Supreme Court). Murtaza said that while he was one of the opponents of Article 184(3), he had no doubts about the intentions of Justice Nisar. However, Murtaza said, the "matter of Article 184(3)'s limitations must be resolved".
Murtaza lauded Justice Nisar's "extraordinary" service as chief justice and wondered if the Supreme Court, as an institution, would be able to continue performing in a similar manner. He stressed the need for the introduction of institutional reforms.
"Chief Justice Saqib Nisar is a very capable person," Murtaza declared.
President of Supreme Court Bar Association (SCBA) Amanullah Kanrani also addressed the ceremony and said that recently "the judges' tone has become so harsh that it distracts the court and lawyers from their basic purpose".
"Lawyers are not given a chance to present facts and arguments," he said. He further said that the "huge amount of suo motu cases" leads to a delay in the proceedings of other petitions. Kanrani also suggested that the appellants be allowed to appeal against the verdicts passed in suo motu cases.
The SCBA president also said that "informal remarks" passed by judges and lawyers during court proceedings affect the "minds of petitioners". Kanrani insisted that there was a need to hold judges accountable.
Justice Nisar's legacy
Justice Nisar was sworn in as the top judge on Dec 31, 2016. After he hangs up his robes today, Justice Khosa will take over the reins of the Supreme Court of Pakistan tomorrow when he will be administered the oath by President Arif Alvi.
Earlier in the day, after adjourning a hearing of his last case, Justice Nisar said he was "thankful to everyone".
"I spent more than 20 years in judiciary. I always tried to issue verdicts in accordance with the law and regulations," he said.
Among Justice Nisar's retirement plans are to open a "free legal clinic". "I will offer free legal assistance to the oppressed, poor and helpless people at my free legal clinic," he had disclosed, stressing that the country belongs to the disadvantaged populace as much as it does to those from the more privileged sections of society.
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The outgoing chief justice passed several landmark judgements during his tenure as top judge — including the verdict in the Aasia Bibi case last year. He also headed the bench which decided that disqualification handed down under Article 62 (1)(f) of the Constitution would be for life.
The defining feature of his tenure, however, may be his judicial activism and frequent suo motu notices. Justice Nisar created headlines not just in the courtrooms, but by visits all over the country — to hospitals, filtration plants, lower court rooms and even prisons. Everywhere that the chief justice went, the cameras followed.
He also set up a fund for the Diamer-Bhasha Dam and initiated a campaign to raise awareness about population control.
At the full court reference that was held for his predecessor, former chief justice Anwar Zaheer Jamali, Justice Nisar in his address — which many believed was an insight into his plan of action as top judge — had declared that the judiciary will not tolerate corruption in any form.
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“The act of corruption by state actors is a complete fraud on the exercise of their power may it be the executive or judicial limbs of the state,” Justice Nisar had observed and cautioned that it should be very clearly understood that besides cleaning ‘‘our own house of corruption, the judiciary would play its role in the eradication of corruption from other limbs of the government’’.
Justice Nisar's judicial career
Justice Nisar has been a judge of the apex court since Feb 18, 2010. Before that he was a judge of the Lahore High Court (LHC).
Before being appointed as a judge, he was member of the Supreme Court Bar Association and Lahore High Court Bar Association (LHCBA). He was elected as secretary general of the LHCBA in 1991.
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Born on Jan 18, 1954, in Lahore, Justice Nisar did his matriculation from the Cathedral High School, Lahore, graduation from the Government College, Lahore, and bachelor of law from the University of Punjab in 1979-80.
He joined the legal profession as an advocate on May 2, 1980. He was enrolled as an advocate of the high court in 1982 and advocate of the Supreme Court in 1994.
He was elevated as the judge of the high court on May 22, 1998, and of the Supreme Court on Feb 18, 2010.
Justice Nisar specialised in civil, commercial, tax and constitutional laws and appeared in a large number of important constitutional cases both in the LHC and the Supreme Court.
He was appointed as the federal law secretary on March 29, 1997, when he became the first member of the bar to be appointed to the important position.
Justice Nisar represented Pakistan in an international conference held at the Wilton Park, United Kingdom, on the subject of “Pakistan and India at Fifty”.
He led a Pakistani delegation to a conference in Manila on the subject of “Asia Region Transitional Crimes”. He also attended conferences in Switzerland and Norway.
He had also been a part-time lecturer at the Punjab Law College and Pakistan College of Law, where he taught civil procedure code and the Constitution.
