Means to an end
The shockingly sparse amount of serious thought put into developing a legal basis for the suo motu procedure is reflective of the manner in which it is understood by legal practitioners – as a practical solution to a practical problem. Although suo motu was originally devised as a means of avoiding the barriers to entry which prevented access to justice for the most disadvantaged classes, however today, the basic legal ‘problem’ which the suo motu doctrine seeks to bypass is: how can legality be imposed when there is nobody who fits the legal criteria of an ‘aggrieved party’. The closely connected question of whether legality can or should be imposed in a scenario where there is no justiciable dispute between two parties is considered unimportant.
The provision of the Constitution on the basis of which the Supreme Court’s suo motu powers are said to be based, is Article 184(3) and it reads as follows: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said article.” It is, therefore obvious that suo motu powers are not derived from any ‘straight’ or ‘literal’ reading of the Constitution of Pakistan since most suo motu cases by the apex Court in the last few years rely upon a definition of Fundamental Rights and Public Importance which is so broad as to become meaningless from a legal perspective (this objection was, in a very rudimentary form, taken up by Malik Riaz prior to the disposal of the Family-gate Case).
The defense most commonly put forward by both lay-people and legal practitioners, in support of such a broad reading of Article 184(3), is that such discretionary powers are necessary where illegality has become so rampant and ingrained within the social and political structure. This line of reasoning is completely hopeless: not only is it a comical inversion of the much-discredited Doctrine of State Necessity, it carries with it the counter-intuitive assumption that bypassing legal procedure is the best possible method of implementing the law. It is, unfortunately and aggravatingly true, that legal procedure does in fact serve a very real purpose. The rule of ‘aggrieved party’ for example (referred to above), serves to ensure that the time of the court is effectively utilised in resolving actual disputes between litigants so as to prevent the Court from becoming a mere ‘talk-shop’ for ethics and morality, a purpose which can ultimately only be served by Parliament which is (unlike the Supreme Court) politically accountable for the decisions which it takes.
But rather than attacking suo moto on the basis of its legal reasoning, which is in any case inappropriate given its basis in practicality rather than law, perhaps it would be better to inquire what can be gained from it and what is lost.
Can it really be said that the three-year (and counting) crusade by the judiciary following reinstatement has had tangible practical benefits insofar as inculcation of the ‘Rule of Law’ are concerned? Do policy-makers, politicians and the friends and relatives of influential higher-ups appear more circumspect in their public dealings as a result? Does the recent disqualification of Yousuf Raza Gilani even have any bearing any more on the very real problem of corruption in the public sphere? Or is it perhaps, tragically, the case that the Supreme Court’s time could have been more well-spent focusing on the efficient resolution of the many thousands of cases of ordinary litigants which are still pending before Pakistani courts.
The writer is a lawyer practicing in Karachi.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.