Daily Times

The Supreme Court has announced that it will be focusing on the provision of healthcare and education in 2018. Unlike in previous years where the Supreme Court would utilise its suo motu powers by sifting through media reports and other information it received, the Supreme Court now appears to be channelising and formalising such powers by pinpointing subject areas in which it wants greater emphasis and progress.

However, whilst appreciating the efforts of the Supreme Court in trying to bring relief to the lives of the public, one is forced to ask whether the further institutionalisation of suo motu powers is in fact a positive development, or a worrisome symptom of a larger problem.

The Supreme Court has taken suo motu actions in a variety of issues in its illustrious history, including the Karachi law and order case, the Mukhtaran Mai case and the Shahrukh Jatoi case, to name a few.

In the Karachi law and order case, the Supreme Court had taken suo motu action in relation to the precarious security situation in the metropolis, amongst other long-standing issues. Through this, the law enforcement agencies have been constantly monitored and supervised so as to bring to heel the dismal security situation in the city. As a result of the backing of the federal government as well as the army, the said suo motu has seemingly helped in the restoration of a semblance of peace to the city.

The problem is that this peace is over reliant on the Pakistan Rangers. A paramilitary force whose scope of work does not actually entail policing. Hence, Karachi’s peace lies uneasily in the hands of a force which could be recalled at any point in time. It was already utilised at the cost of reforming and modernising the Sindh police force. This indicates that despite the suo motu action, which even noted the need for depoliticising and reforming the police, no real reforms have actually been undertaken, executed, or initiated in relation to Karachi’s security, therefore making it all the more likely that the current bout of peace is transitory in nature.

In the Mukhtaran Mai case, it was the Supreme Court which had taken suo motu action in light of the accused’s political influence that was seemingly impairing the investigation and legal processes in question. The Supreme Court monitored the investigation of the crime as well as the processes of the Anti-Terrorism Court, and as a result, eight of the fourteen accused were acquitted in a speedy trial, whilst all others were found guilty and sentenced. The convicted filed appeals before the Lahore High Court, which in its decision exonerated all the convicted individuals except Abdul Khaliq, whose death sentence was converted into a life imprisonment. The state filed appeals to such decision, as did Abdul Khaliq, whilst the Supreme Court had taken a second suo motu action against the decision of the Lahore High Court and the Federal Shariat Court. Ultimately, the Supreme Court, in the year 2011, upheld the judgment of the Lahore High Court.

The said verdict raised questions about the capacity of our investigative agencies to collect evidence, as well as the sufficiency of such evidence to secure convictions. It also raised questions as to the effectiveness of the suo motu actions in the case, and whether anything was bettered in the system as a result of it. On the face of it, investigations did not seem to get any better, capacities had seemingly not increased, nor did the said actions purportedly have any long term impact on how rape cases were being handled in the courts.

In the Shahrukh Jatoi case, the Supreme Court took suo motu notice in light of unprecedented political pressure to subvert the rule of law. The Supreme Court, in the year 2013, issued necessary directions for an effective and speedy investigation of the matter in question. The Anti-Terrorism Court awarded sentences to the accused in its judgment. However, the said judgment was challenged in appeal thereafter, and in addition to this, the complainants/legal heirs also pardoned the accused for their crimes; albeit anti-terrorism laws did not allow consideration of such pardons in terrorism cases. The judgment of conviction was subsequently thrown out by the Sindh High Court on the basis that the terrorism clauses were not applicable in the crime in question, and hence, the Anti-Terrorism Court did not have jurisdiction to hear the matter. Hence, the matter was sent to the sessions court for a retrial. Thereafter, on the basis of the pardon granted by the complainants or legal heirs, amongst other grounds, Shahrukh Jatoi obtained bail.

Karachi’s peace lies uneasily in the hands of a force which could be recalled at any point in time. It was already utilised at the cost of reforming and modernising the Sindh police force. This indicates that despite the suo motu action, which even noted the need for depoliticising and reforming the police, no real reforms have actually been undertaken

Upon the pronouncement of the Sindh High Court verdict, civil society raised many questions about the handling of the case, including whether the monitoring of the process ensured justice for Shahzeb Khan and his family, and whether the suo motu resulted in shielding the family from political pressures so as to allow effective prosecution? Furthermore, as in the other cases, it was also questioned as to whether the said suo motu, coupled with all the previous ones, in any manner, way, or form, better or increase investigative capabilities, or corrected any other institutional fault in the judicial apparatus?

Unfortunately, if the Mashal Khan suo motu case is anything to go by, it appears that the answer to these questions is in the negative. Although temporary relief was afforded in each specific case, none of these cases, or the others, actually potently addressed the abject ineptness of the investigation agencies, the scope of police reforms required, and resistance to it from the government itself, the vulnerability, threats, and insecurities faced by the complainants during the legal process, as well as the failings of the judicial process in terms of a speedy trial, sensitivity to subject matter, and quality of judgments.

This is because the suo motu’s taken by the Supreme Court, as epitomised by the examples given above, failed to act in pursuance of any clear plan as to aim and purpose. These cases are clear-cut and one-off efforts to provide temporary respite to a frustrated and hapless public. They tend to play to public sentiments and emotions, and are less geared towards slow and incremental institutional growth. If the focus of the Supreme Court were redirected, suo motu actions could be a potent instrument of long term change.

This can be done by limiting such actions to issues guaranteed to have systemic impacts and in which matters can be positively addressed and resolved without a need for constant supervising or monitoring. It may be noted that there is a need to limit the supervising or monitoring role of the Supreme Court because when the Supreme Court assumes executive functions by monitoring investigations and issuing directions to the relevant agencies, amongst other things, it inevitably starts substituting its own judgment for that of the executive, thereby exposing itself to a subject matter of which it does not possess the expertise. Furthermore, it also exposes its limitations as an institution, in so far as a continuing mandamus with stringent requirements for constant supervision and direction would perhaps spread the resources of the Supreme Court too thin, thereby also impacting its ability to cater to its usual and daily workload.

Hence, in essence, in taking any suo motu action, the Supreme Court must ask itself as whether the system will be, or in fact can be, bettered in the long term by taking of such extraordinary action, and whether the action in question could be maintained without constant supervision or monitoring? If the answers to these questions are either no or unlikely, then it may be advisable for the Supreme Court to stay its hand and utilise its capacity and time to reform those aspects of the system which are unequivocally within its control.

In a nutshell, suo motu actions are not a blessing in disguise. In fact, they are an unequivocal acknowledgement by the Supreme Court that the system is not working within the ordinary processes conceived by the law. Furthermore, it is also pertinent to note that a greater number of suo motu actions do not mean that the judiciary is becoming more responsive to the litigants. In fact, if anything, it means the exact opposite. It means that the judiciary and its many tiers is failing to effectively respond to the evolving challenges confronting it. And that is why the Supreme Court is having to increasingly invoke such extraordinary jurisdiction so as to afford relief to parties who may not be able to obtain it otherwise. Now if that doesn’t raise alarm bells, I’m not sure what will.

The writer is a partner in a litigation law firm based in Karachi, and can be reached at basil.nabi@gmail.com, he tweets at @basilnabi

Published in Daily Times, January 9^th 2018.