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MANY have celebrated the frequent use of suo motu jurisdiction by the Supreme Court of Pakistan over the last few years as an assertion of the independence of the judiciary and a championing of the causes of the poor and helpless. Others have decried it as undue judicial activism and interference in the affairs of the government.
However, regardless of the rights and wrongs of doing so, one thing should be clarified: the use of suo motu jurisdiction in this manner represents not the success of the judiciary, but its failure; not an assertion of the rule of law, but its weakening. It is the single most telling indictment of the lack of capacity of normal judicial (and law enforcement) procedures to address the problems plaguing the average citizen of this country.
On Nov 27, 2013 the Supreme Court ordered criminal action against police officials for failing to register a complaint and taking appropriate action on the information that a deaf and mute woman had been gang-raped in Punjab. The fact that a deaf and mute woman can be raped in this country but is unable to have a police report registered in the case without the Supreme Court’s intervention is not a success of the Supreme Court — it is society’s failure.
The fact that inspectors general of police of a province have to appear in the highest court to answer for every such instance is a sign of an unresponsive state. There is something wrong in society when an ordinary person has to depend on the sympathies of the highest court to obtain redress.
The Supreme Court’s response to this malaise has been to expand its use of suo motu powers to hitherto unprecedented extent. Ultimately, this response is typical of our response as a country to most problems in recent times. Rather than working towards a strengthening of the institutional response mechanisms, we seek instant fixes and immediate gratification.
This is exactly what the Supreme Court does when it seeks to solve each problem that comes to its notice by taking suo motu notice rather than strengthening our lower judiciary so that such matters do not need to be taken up at the Supreme Court level.
Ultimately, this approach fixes a symptom of the problem while making the problem worse. We have already seen this happen. A wronged person in our society no longer seeks justice at the lower forum. Instead, he approaches the media and through the media appeals to the chief justice to take notice of their problem. Therefore, it has resulted in a lack of faith in the lower forums.
Consequently, the capacity and willingness of the lower forums to deal with such problems diminishes even further and ironically increases reliance on the all-powerful ever-sympathetic Supreme Court. And when the Supreme Court reaches its capacity, as it ultimately will, the ordinary person will have nowhere left to go.
A lawsuit, even the smallest one, by definition represents the point of societal breakdown. Laws are meant to regulate our society. When the ordinary mechanisms of society fail to offer us protection of the law is when we approach the court. Therefore, every litigant in court represents a way in which ordinary society has broken down.
Meaningful ‘rule of law’ would have consisted of actual judicial reform that addressed the problems of litigants and strengthened the lower judicial forums and increased their capacity to deliver justice. This run-to-the-media and get-the-attention-of-the-Supreme-Court version of rule of law that has been created is not ‘rule of law’, it is the rule of one court of law.
True, other courts are somewhat taken up in the same vein. However, this masks the other fundamental problem — suo motu jurisdiction depends on the court taking jurisdiction — in other words, it depends on the court, not the person, what disputes it hears. In this way, it strengthens the court and not the people.
Is it a wonder that people, instead of taking their matters to appropriate courts or forums for redress as a matter of right, have begun to ‘appeal’ to the court to take jurisdiction of their cause? So, even where other courts or judges have begun to assert themselves, this constitutes an assertion of the judiciary, not an assertion of the law.
While one can understand a well-intentioned temptation to use one’s own office or power to do good for the people, it can ironically lead to institutions becoming dependent on the person or office to perform rather than gain strength as a whole.
This problem by no means is that of the judiciary alone. For example, it is what the Pakistan Tehreek-i-Insaf is also guilty when it chooses to take matters into its own hands and hail its workers transforming themselves into highway inspectors turning back trucks carrying Nato supplies.
If parliament is not responding to their demand and the federal government is not listening then why not just do it yourself? This too ironically wins a small (farcical) battle for the PTI but at the cost of weakening the state (whose very weakness it is protesting). It is also what is at play when people call for army intervention when democracy does not respond effectively.
It is high time that Pakistan’s love affair with vigilante-ism and extraordinary intervention ends. Those in a position to use institutional strength would do well to realise that the greatest service to this country they could render would be to build the strength of those institutions. The solutions to immediate problems should not compromise this ultimate aim.
The writer is a Lahore-based lawyer.
