CJP Khosa’s proposal may open up a Pandora’s box


By Ahmed Bilal Mehboob

JUST a day before assuming office as the new Chief Justice of Pakistan, Justice Asif Saeed Khosa surprised many by proposing an inter-institutional dialogue and asked the President of Pakistan to convene it. Although similar proposals have been made in the past, it is probably the first time that the proposal has come from the head of the judiciary and that alone is sufficient to make it extraordinary.
In his speech delivered at the full court reference for the outgoing CJP, Justice Khosa also proposed that the dialogue must be attended not only by the top leadership of the three state organs – the parliament, the judiciary, and the executive – but by the top leadership of the military and intelligence agencies, too. 
Justice Khosa gave multiple justifications for his proposal citing a trust deficit among different state organs, encroachment of one state organ’s domain by the other, and the need to discuss larger issues which jeopardize good governance. 

He also proposed a highly-ambitious agenda for the dialogue which may necessitate the creation of an institution with appropriate support and infrastructure. The agenda includes taking stock of the mistakes made by the three organs of the state; resolution for the encroachment of the domain of one organ by the other; resolving pending court cases; restricting the legislature to its legislative domain with no development funds for legislators; curbing political influences in the posting, transfer and promotions of public servants; safeguarding operational autonomy of various executive authorities; discussing the role of the armed forces and the intelligence agencies in the governance paradigm; ensuring civilian supremacy alongside civilian accountability; and addressing the issues of missing persons and enforced disappearances, to name a few. However, perhaps the most ambitious items on the agenda are those that seek to prepare a ‘Charter of Governance’ and a ‘practicable policy framework.’

All the problems identified in his speech do exist in Pakistan. The diagnosis of the ills of the state is, therefore, in general, correct. However, is the proposed dialogue and the participation of the judiciary in such an exercise the right cure? 
In Pakistan’s parliamentary form of government, the Legislature and Executive overlap and almost continuously interact with each other. The parliamentary and executive leadership sit with the top military and intelligence leadership in the National Security Committee periodically, too. The dialogue forums therefore already exist. However, no formal forum exists for a dialogue between the judiciary and the other two organs of the state, except in the case of a judicial commission which is specifically constituted to appoint judges and where the federal law minister represents the executive. There is hardly any international example where the judiciary is part of such a dialogue. One may argue that there is a good reason for not including the judiciary in such a way because any involvement in decisions taken during the course of the talks may make the judiciary a party to these decisions and invariably lead it to compromise its independence and neutrality when it is later approached for adjudication. 
Many constitutionalists feel that the roles and jurisdictions of all state organs are already defined in the constitution with the Supreme Court tasked with the role to interpret it.
There may be considerable differences on the question of who should participate in the proposed dialogue, such as who qualifies to be among the ‘top parliamentary leadership’. Will it be restricted to the National Assembly Speaker and Senate Chairman or would leaders of the opposition in the two houses be included, too? If opposition leaders do take part in the dialogue, reaching an agreement in the forum will become an even greater challenge irrespective of the desirability of such a move. The vastness of the agenda also enhances the level of challenges in reaching any conclusion at the forum. 
Many experienced public officials believe that the proposal has the potential to distract the CJP from his core mission of dispensing justice and his stated aim to address pending cases and reform the justice system — given the fact that the current CJP has only a short term of about 11 months. 
Currently, the constitutional scheme gives a symbolic status to the president. After a number of experiments in the past, some of which had been quite traumatic, we have finally agreed and adapted to the current scheme. With the president being asked to chair the proposed dialogue, it may lead to a situation where the current delicate scheme is disturbed. 
Furthermore, the sphere of influence of the federal government and the prime minister has considerably shrunk after the 18th constitutional amendment, too. It is apprehended that the proposed dialogue forum, chaired by the president, may further chip away the premier’s influence as he will be just one among several members at the proposed meeting. 
(Ahmed Bilal Mehboob is President of PILDAT-Pakistan Institute of Legislative Development And Transparency. Twitter: @AMBPildat)