Daily Times

Judicial activism is on the rise in Pakistan. Increasingly, the Supreme Court (SC) has used its suo motu powers to enforce an exceptionally broad understanding of “fundamental rights”in areas that might ordinarily be seen as the purview of government policy. This has produced significant tension between the judiciary and the executive. In this context, the Pakistan Bar Council (PBC) has urged the SC to restrain or regulate its suo motu powers. The limits of the SC and the power of the judiciary are now a critical topic of debate in Pakistan.

The PBC has proposed that the “SC should suitably amend the Supreme Court Rules, 1980, to regulate and structure the parameters of the exercise of suo motu powers, and a Special Bench of the Court should be constituted for the hearing of suo motu cases.” To strengthen the constitutional balance-of-powers in Pakistan, the PBC believes that the top court should exercise its powers under Article 184 (3) of the Constitution more sparingly, in order”to maintain the principle of trichotomy of powers”.There are concerns that, owing to its increasingly active use of suo motu powers, this balance has begun to tilt too far in the direction of the judiciary. What some see as a proudly “independent” judiciary, others see as an increasingly “unaccountable” court.

Article 184(3) of the Constitution says that, “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 … is involved, have the power to make an order of the nature mentioned in the said Article”. Even a brief reading of this article establishes an SC mandate to enforce fundamental rights.

However, in a recent editorial (“Limits of court powers?”) Babar Sattarasks, “Isn’t it time that a bench comprising all SC judges decided … the scope of 184(3), [that is], the test for matters of public importance in relation to enforcement of fundamental rights that will be taken up by the SC … and the nature of orders to be passed?” According to Sattar, “this will inject certainty into [the] law and ensure that the scope of 184(3) doesn’t depend on the personal sensibilities of a CJ”. While supporting his argument, he submits, “Article 176 states that the SC comprises the chief justice and judges of the SC. Article 184(3) powers are powers of the SC and not those of the CJ [acting alone]”.

Babar Sattar has raised a valid question, but his argument as to the composition of the SC for exercising suo motu powers is partially misconceived. Sattarrelies on Article 176, which states that “the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Parliament…”.  However, it is not correct that a suo motu decision by the CJ (or any other Judge of the SC) shall not be binding on other courts or executive officers unless it is made by’a SC defined as more-than-one-SC-justice acting together’.

In my view, it is not the number of SC judges but the designation of any judge as a ‘Supreme Court’ judge that makes a suo motu judgment binding on other courts and executive officers. Thus, Sattar’s argument that the CJP (or any other SC Judge) should not be enabled to act alone under Article 184(3) is not correct.

I agree with Sattar, however, that while maintaining its appreciation for the enforcement of fundamental rights, the SC must also appreciate the separation of powers vis-à-vis the other institutions.It would, therefore, be helpful if the SC could draw the legal line between the domain of “fundamental rights” and the “government policy” more clearly. When, exactly, can an appeal to fundamental rights be invoked via suo motu powers in relation to flaws or gaps in existing policies?

Currently, there is a sense that the judiciary’s vastly expanded use of suo motu power has traded short-term popularity with the public for a long-term constitutional imbalance.

The SC should ensure the protection of fundamental rights without interfering in the law-making powers of the executive. There should, for instance, be a clear link between the explicit text of Articles 8 – 28 and a suo motu order of the SC. One might ask, for instance, which constitutional article allows suomotu powers for healthcare standards? After all, Article 9 simply says, “no person shall be deprived of life or liberty save in accordance with [the Government’s] law”. The explicit text of the constitution seems to suggest that, even if “life” is a fundamental right, specific hospital standards are matters of government policy.

What we need from our SC is a clearly bounded definition of fundamental rights. If the SC continues to enforce its vastly expanded understanding of fundamental rights, that will disturb the balance of powers envisaged by our Constitution. The Government is responsible for matters of public policy; the SC is responsible for ensuring that our constitutional provisions are met. These provisions include fundamental rights clauses that appreciate the role of Government policy.

The writer is a lawyer can be contacted at zranjahlaw@gmail.com

Published in Daily Times, May 26^th 2018.