ISLAMABAD: The question of suo motu jurisdiction has over the years assumed outsized importance and left the legal fraternity split on whether the chief justice of Pakistan (CJP) alone has the powers to invoke it, or can any judge do so.

A statistical study of suo motu cases (SMCs) reveals that the practice adopted in this common law jurisdiction is clear: suo motu jurisdiction is, under normal circumstances, to be invoked by the CJP alone, and not by any other judge.

The few instances where benches not headed by the CJP invoked the jurisdiction were eventually declared to be a “conceptual error” and “constitutionally impermissible”, in a judgement written by Justice Munib Akhtar in March this year.

Justice Akhtar was part of a five-judge bench which had on Aug 26, 2021, recalled an Aug 20 two-judge bench order to summon a number of federal government officials in the journalist-cum-vloggers harassment case, but declared the CJP was the sole authority for invoking or assuming the suo motu jurisdiction under Article 184(3) of the Constitution.

The two-judge bench was headed by Justice Qazi Faez Isa.

While hearing the presidential reference on Article 63-A of the Constitution during the recent deadlock in Islamabad, Chief Justice Umar Ata Bandial suggested the counsel to go through the Aug 26 verdict which concerned petitions related to Article 184 (3) of the Constitution — an inherent authority of the apex court invoked for the enforcement of fundamental rights.

In one of the hearings before a five-judge Supreme Court bench last month, when the court took up the presidential reference seeking interpretation of Article 63-A, Advocate Azhar Siddique invited the CJP’s attention to a petition he wanted to file regarding the political situation in Punjab.

In his August judgement, Justice Munib Akhtar had explained that the suo motu invoking of the jurisdiction lay solely with the CJP, especially when the law mandates that the constitution of benches for exercise of the jurisdiction is with CJP.

The Aug 26 short order had also made it clear that the invocation or assumption of the suo motu jurisdiction of the Supreme Court under Article 184 (3) will be guided by the principles that the CJP was the sole authority through whom this jurisdiction could be invoked or assumed.

The exercise of SMC become significant when on Sept 29 last year, Justice Yahya Afridi withdrew himself from the hearing of a suo motu case unless proper rules were framed by the Supreme Court for regulating the exercise of powers under Article 184 (3).

Justice Afridi was part of a three-judge bench set up by former CJP Saqib Nisar in a suo motu case in 2018 about appointments in the Sindh education department.

In his judgement Justice Akhtar had explained that the Chief Justice of Pakistan may invoke or assume suo motu jurisdiction in his discretion and will do so if recommended by a bench of the Supreme Court.

The order also affirmed in clear terms that no bench will take any step or make any order that would constitute exercise of suo motu jurisdiction, such as issuance of any notice, making any enquiry or summoning any person or authority.

In his detailed judgement, Justice Akhtar observed that invoking of suo motu jurisdiction of the apex court over the years had been analysed, debated, discussed and indeed criticised.

Justice Munib had also observed that benches headed by the CJP do invoke suo motu jurisdiction of the court, but there was a crucial distinction between such benches and those of which the CJP was not a member.

When a bench headed by the CJP seems to invoke suo motu jurisdiction, it is not an act of the bench, but three distinct steps, Justice Akhtar observed.

The first is where the chief justice invokes suo motu jurisdiction in respect of a matter, second where the CJP constitutes the bench headed by him to exercise the jurisdiction so invoked. And the third is where the bench does exercise this jurisdiction.

Since it is all happening together, the three steps become conflated, Justice Akhtar explained.

Each of the elements is perfectly legitimate within its own scope. As a matter of law the invoking of suo motu jurisdiction by such a bench is equivalent to nothing other than an invocation by the Chief Justice of Pakistan.

Statistics speak for themselves

Under the law, the invoking of suo motu jurisdiction by a bench is equivalent to nothing other than an invocation by the CJP.

The judgement also offered a peep into the number of human rights cases (HRC) registered in the Supreme Court from July 2005 to 2021.

According to the data cited in the judgement, 1,028 HRC cases were registered whereas 243 suo motu cases (SMC) were registered during the same period.

Of these, 28 cases appear to be pending, the judgement said.

It added that an analysis of the SMC cases shows in 158 cases (65 percent), suo motu jurisdiction was invoked by the CJP alone and in 20 cases it was done on the recommendation of an individual judge.

When the data for HMC and SMC cases are combined, giving a total of 1271 cases, the picture becomes even clearer.

The CJP alone invoked the suo motu jurisdiction in 1,186 cases (1,028 plus 158), 97 percent of the total.

Thus in 97 per cent of the cases, suo motu jurisdiction was invoked by the CJP either directly or as a matter of law. The cases where this was done by a bench not headed by the CJP constitute a miniscule 1.5 per cent and those where this was done by individual judges amounted to a negligible 0.6 per cent.

The remaining 0.5 per cent represents the cases where the matter was simply referred to the CJP by benches concerned.

These figures speak for themselves.

Published in Dawn, May 3rd, 2022