Judicial powers
ARTICLE 184(3) of the Constitution of Pakistan provides a measure of last resort for citizens of Pakistan to move the highest court of law for the collective protection of their fundamental rights from an overreaching executive or legislature. In deviation from standard legal procedure, the Supreme Court can also exercise this jurisdiction on its own initiative, ie suo motu.
What sets apart suo motu actions from normal judicial cases is that they require no petition and no aggrieved party. The court can take judicial notice of any matter and it becomes the prosecutor and the decider of the matter all at the same time.
Suo motu cases by the Supreme Court of Pakistan under Article 184(3) began with the Darshan Masih case where the apex court took suo motu notice of bonded labour practices, which took place in Pakistan on the basis of a letter sent to the court by one of the victims.
Pre-2009, suo motu actions had been mostly exercised by the Supreme Court to ensure certain marginalised communities and persons whose rights were greatly threatened, and who were out of the reach of the courts, were provided a forum for redressal of their grievances.
Suo motu is a power that needs to be regulated.
Post 2009, however, the jurisdiction of the Supreme Court under Article 184(3) began to metamorphose. Suo motus became less about marginalised communities and more about political grandstanding and the Supreme Court’s intervention in political governance.
The use of such expansive suo motu powers by the superior judiciary nowadays is seen as reflecting the phenomenon of a hyper-assertion of judicial autonomy post the lawyers’ movement. Legal researcher Maryam S. Khan in her paper Empowerment without Accountability? The Lawyers’ Movement in Pakistan and its Aftershocks, has noted how this type of judicial interference in policy and political matters by the Supreme Court under its suo motu powers has actually led to a weakening of democratic institutions in Pakistan and stalled any attempt to bring about structural reforms in the ailing justice system.
Political suo motus can also be problematic because they tend to shift governance and administrative measures from elected representatives and experts to a bench of unelected judges who may not have relevant expertise in a particular area.
Most recently, the Supreme Court, while taking suo motu notice of the measures being taken by the federal and provincial governments to combat the coronavirus outbreak, decried the efforts of the federal and provincial governments and passed directions which effectively led to an end of the lockdown. It appears that the honourable court passed these orders without the assistance of any medical and public health experts.
These instances of the perceived misuse of the apex court’s powers have left many wondering whether the suo motu jurisdiction and powers of the Supreme Court under Article 184(3) have any limits and if they actually cause more harm than good.
In ‘Secretary vs Meejee Flour and General Mills, Mardan’, the Supreme Court, in a widely celebrated judgement, held that the exercise of discretionary powers under public and administrative law required strict structuring so that public power and discretion are exercised in an impartial and open manner. Therefore, this jurisdiction and the Supreme Court’s power to administer ‘complete justice’ under Article 187(1) of the Constitution should not be read as carte blanche which violates the separation of powers and makes the Supreme Court unaccountable. It is a public power which needs to be regulated.
The International Commission of Jurists in their 2013 report titled Authority without Accountability: The Search for Justice in Pakistan has proposed that the Supreme Court of Pakistan must make rules for the transparent exercise of its suo motu powers under Article 184(3) specifically providing for transparent criteria detailing matters the Supreme Court can take suo motu notice of, composition of the benches made by the chief justice to hear suo motu matters and the procedure to be adopted by the court in a suo motu hearing.
Sadly, no rules providing guidelines for the exercise of suo motu powers have ever been made or attempted to be made till date. It has been observed that this may have made suo motu jurisdiction under Article 184(3) a tool to be used at the whim of a chief justice, which is antithetical to the very idea of the rule of law.
It is necessary and imperative that the highest court of our land takes some time to introspect and structure the use of its powers under our Constitution, lest it risk becoming a violator of the very constitutional rights of citizens which it professes to protect and enforce.
The writer is a human rights lawyer working in Islamabad.
Twitter: @OmerImranMalik
Published in Dawn, June 18th, 2020