ISLAMABAD: Outgoing Chief Justice Jawwad S. Khawaja emphasised on Wednesday the need for instilling the virtues of boldness and courage in judicial pronouncements alongside the values of knowledge, learning and righteousness.

“I have witnessed many shades of fear in the halls of justice,” Justice Khawaja said and went on to explain what he meant by different shades of fear.

It sometimes came in the form of coercion and pressure from the powers that be to discourage the pronouncement of independent and rightful decisions, and sometimes, it was the fear of offending the powerful or the dominant, Justice Khawaja said.

The outgoing chief justice was speaking at a full-court reference hosted in his honour in a packed Courtroom No 1. The ceremony, which was also witnessed by his family members, was boycotted by officer-bearers of the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA). However, SCBA Vice President Iqbal Shah and Attorney General Salman Aslam Butt were present on the occasion.

Outgoing CJP defends suo motu actions, says negative tendencies have crept into judicial system

In honour of the outgoing chief justice’s last judgment — ordering that Urdu be implemented as the official language forthwith — both Justice Khawaja and Chief Justice-designate Anwar Zaheer Jamali delivered their speeches in impeccable Urdu.

Justice Jamali, who would be sworn in as chief justice on Thursday, said that it was not necessary that every single judgment by a judge be appreciated.

It was the right of citizens to speak their mind or express their independent opinions on the judgments of the Supreme Court, while remaining within the bounds of decency set by law and the Constitution, Justice Jamali observed.

“This is why we see a variety of discourses on court judgments among different sections of society,” he said, adding that the decisions rendered by the outgoing chief justice were no exception and were thus equally subject to criticism or admiration.

Similarly, differences of opinion among the judges of the Supreme Court, as reflected in the dissenting notes written by them, always encouraged different interpretations of the laws, he said.

Justice Khawaja’s speech focused primarily on the self-accountability of the “deteriorating judicial system” by taking stock of different negative tendencies that had crept into the judiciary.

He said confidence and fearlessness should be the real faces in the halls of justice, and therefore, it had become incumbent upon judges, lawyers as well as people from all walks of life to confront the felony of professional misconduct — a vice that had seeped deeply into the system with full force.

The outgoing chief justice also criticised what he called generosity among judges towards litigant parties, which was impairing the tradition of bold judgments.

Citing a study he conducted during his tenure as a Supreme Court judge, Justice Khawaja lamented that it had become very common for litigation to take almost 25 years to culminate at the top level.

“I must confess that when I started my career in the legal profession in 1970, the situation was not as bad as it is now,” he said.

Justice Khawaja said it was time for all organs of the state to acknowledge that they had failed to fulfil the promise made under Article 37 of the Constitution to provide quick and indispensable justice at citizens’ doorsteps.

Referring to the role of the legal profession in providing swift justice to litigants, he regretted that lawyers regrettably misused their position and had become a tool to serve their own interest, which manifested itself in the near-daily strikes by lawyers.

Forty years ago, the word “strike” was considered to be unconventional in the judicial hierarchy, but now this tendency had spread to every nook and corner, he said, citing another study that suggested that the lawyers of the Islamabad district courts had observed strikes more than 50 times between Jan 1 and Dec 31, 2014.

Put differently, lawyers were on strike in the Islamabad district courts on every fourth day, as a result of which half the cases before different courts had to be adjourned. The situation is the same in the other cities.

But lawyers alone were not at fault, Justice Khawaja said, adding that the government was equally responsible for the collapse of the judicial system. This was evident from the fact that court dockets were filled with criminal trials merely because governments were not fulfilling their obligation of providing due rights to the citizens.

The time had come for an inquisitorial system of justice running side-by-side with the current adversarial system, to promote the swift dispensation of justice as seen in the developed world, the outgoing CJ suggested.

He also came out in support of invoking the suo motu jurisdiction under Article 184(3) of the Constitution for the enforcement of citizens’ fundamental rights. “The experience has taught us that this is the most effective way of implementing the fundamental rights of the people,” he said, adding that not more than 30 suo motu notices were taken by the Supreme Court in any judicial year, as opposed to about 20,000 cases filed every year.

Published in Dawn, September 10th, 2015

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