ISLAMABAD – Former foreign minister Khurshid Mahmud Kasuri has written anopen letter to the new Chief Justice, Asif Saeed Khan Khosa in which he hascongratulated the top judge on assuming office and expressed his hope thatin view of the new CJP’s academic background and legal track record, hewill 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 bywhat he had stated in his book, ‘Neither a Hawk, Nor a Dove’ published in2016 (pages 452-475) that there are genuine cases of executive andlegislative failure which require the Court to enforce fundamental rightsin matters of public importance.
He opined that the Supreme Court may only as a last resort justifiablyexercise its suo motu powers as per the Constitution’s Article 184 (3). Hehas hoped that the new Chief Justice will not condone its sweeping scopeand unbridled use which undermines the functioning of lower courts, andcannot be squared with the Constitution’s Article 10-A due processguarantees or with rights of appeal.
He says in his letter that whereas he respected former Chief Justice MianSaqib Nisar’s reputation for integrity, legal expertise andwell-meaninginess, but, even well-meaning actions, unless completely andthoroughly thought through, can wreak disastrous consequences. He pointsout that it does not require a sage to predict that such impulsive,impetuous and ‘popular’ actions cannot stand the test of time nor defy thelaws of economics.’
Recalling the tenure of the former chief justice Iftikhar Chaudhry, Kasuriadded that there were complaints from senior bureaucrats that he interferedin their work excessively, he had a habit of summoning them and then makingthem wait for hours, wasting their productive time besides compromisingtheir dignity.’ This attitude which continued during ex-CJP Nisar’s tenurehas also caused near-paralysis in the bureaucracy and almost a pen-downstrike.
He added that ‘trial by the media’ became a constant complaint during histenure. Replicating CJP Iftikhar Chaudhry’s playbook, CJP Saqib Nisarushered in a reign of suo motu driven judicial activism and remained in thenews 24/7, often grabbing top headlines. Perhaps he made more news than thePrime Minister!
It appeared that neither the executive nor the parliament mattered.
The civil government cannot, it seems, even fix the date for Mohmand Dam’sinauguration. This, he added, was not what is envisaged or the norm in aconstitutional democracy. The proactivity of Chief Justice Nisar inpolitical 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 whenhe was trying to attract the Russian government on tripling the capacity ofsteel mill and had very useful discussions with his Russian counterpartForeign Minister Sergey Lavrov who showed great keenness in the project.
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The Court’s decision put an end to all such efforts. ‘As it is, the Court’sdecision has swelled the Steel Mill’s losses to over Rs. 200 billion andcounting! Meanwhile, the Court’s decisions in RPP and Reko Diq cases havebeen disregarded by international arbitration awards, imposing on Pakistandamages of $700 million in the RPP matter and potentially exposing it todamages 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, Kasurisaid that there were complaints galore. He referred to how harshly hetreated respected journalist of unimpeachable integrity Hussain Naqi in hislate 80s and addressed him as ‘tum’! Kasuri said he was shocked as was theentire journalist community at this.
Kasuri pointed out the desire of two former chief justices to remain in themedia 24/7. He said that it is well known that judges should lead the lifeof a recluse; perhaps, for this reason the names of the judges in Englanddid not appear in a telephone directory. He said it is axiomatic that thatjudges best speak through their judgments. In his letter, he has referredto Islamic and Western approaches regarding qualities and conduct of judgesand 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-knownsenior advocate of the Supreme Court told him that while CJP Nisar wasabout to take a decision, the lawyer concerned pointed out that what theChief Justice was contemplating could not be supported by law, the ChiefJustice said words to the effect that “it is law if we say it !”
Kasuri also refers to the recent spate of contempt notices eitherthreatened or actually issued against various people. He notes that ‘judgesare not supposed to be known by the example of their power. Rather, theirrespect emanates from the quality and meticulousness of their judgments.’
In the end, Kasuri prayed for Chief Justice Asif Saeed Khan Khosa’s successand hoped that he will leave a legacy which will make the followinggenerations of lawyers and judges look up to his judgments with pride.‘Only sound judgments stand the test of time’, Kasuri concluded.
