Of late there has been a spate of cases taken up by the Lahore High Court chief justice on his own motion. — Photo by AFP

Suo motu means to take cognisance of a matter on one's own initiative. High courts in Pakistan, being a creation of the constitution, derive their authority from the constitution and other laws. Article 175(2) of the 1973 Constitution explicitly restrains the high court from assuming jurisdiction in any other manner except as provided by the constitution or other laws.

As far back as 1958, the Supreme Court of Pakistan declared that the high courts do not have suo motu powers under the then 1956 Constitution. In 1971 the Supreme Court made a similar declaration in respect of the 1962 Constitution.

The provisions vis-à-vis powers of high courts in the present Constitution of Pakistan more or less resemble those in the 1962 Constitution. The Supreme Court therefore reiterated its declaration of law in 1982 that a high court does not have suo motu powers.

Of late there has been a spate of cases taken up by the Lahore High Court chief justice on his own motion. It may be observed that judging in accordance with law is the sole function of any court of law. One may take solace in the belief that the Supreme Court is there to provide justice using its suo motu powers. But the courts have to do so within the parameters ordained and demarcated by law. While the apex court has the authority under the constitution to deliver complete justice, this power is beyond the jurisdiction of the high courts.

Let us then step back and see why high courts have not been given suo motu powers in the constitution by the founding fathers and why the Supreme Court has opined that a high court does not enjoy such powers.

The paramount reason why the constitution has not conferred suo motu powers on the high courts is that it discourages people from following due process, the right of an aggrieved person to move the courts when his or her rights are infringed. Cases that are already pending before the courts can be delayed even further.

There are currently close to 1.52 million cases pending in Pakistani courts. Approximately 84,700 cases are still pending in the Lahore High Court alone. When the high court takes suo motu notice of issues reported in the news, the pending cases become secondary.

Why would anyone want to spend long and arduous years in court following the procedure prescribed by law when it is quicker to get justice if you can attract media coverage by protesting on Mall Road? If speedy justice is what those protesting at the high court want, don't the people whose cases are pending have the same right to a fast-track trial?

A high court ought not to be influenced by sensational reports in newspapers and television channels for this might encourage media trials. What's more, the legal system in our country is adversarial in nature, where one party is pitted against another. By taking cognisance of a matter on their own motion, high court judges run the risk of becoming a party to the proceedings; in effect, they become both the prosecutor and the adjudicator.

This goes against one of the most sacred principles of natural justice no one ought to be a judge in his or her own cause. Note that 'own' does not imply personal cause and is much wider in scope and application.

Thirdly, while the advantages or otherwise of judicial activism may be debated, there is no denying the fact that the judiciary cannot be society's reformer. A judge is not a missionary or a preacher.

Our democratic system of government, notwithstanding its failings, runs on the principle that public policy is set by the executive. How can an unrepresentative body or person decide on policy matters that should be the exclusive purview of elected officials?

Clearly, law and history point to one direction. Still, one wonders whether taking suo motu action for the benefit of the poor — even if it is not permissible by law — could be in the interest of the public. But if we allow a precedent of judicial activism now, what if at a later time suo motu action is taken not in the public interest but for other reasons?

It is for this reason that the Supreme Court maintained in the recent NRO judgment that if the court attempts to become the arbiter of what is good or bad for the people, it will inevitably enter minefield doctrines such as the 'law' of necessity or salus populi suprema lex (the welfare of the people is to be the supreme law). Decisions regarding what is good or bad for the people must be left to elected representatives, subject only to the limits imposed by the constitution.

I am reminded of a passage from a judgment by the apex court which is not only instructive for high courts but also binding on them

“Before concluding we must also observe that while we appreciate the anxiety which the learned judge displayed in this case to secure what he thought would advance the ends of justice, we would like to add by way of caution that it is of the utmost importance to remember that a superior court should not allow itself to be influenced by sensational reports in newspapers or by what he [sic] may have heard or read outside the court, for in the first case it may unwittingly be encouraging a trial by the press and in the other case unnecessarily be exposing itself to criticism that its actions are motivated by bias.”

The writer is an advocate of the Supreme Court.