Daily Times

The power to take suo motu action is incorporated in Article 184 (3) of the Constitution of Pakistan. With respect to the jurisdiction of the Supreme Court, it establishes the following:

“Without prejudice to the provisions of Article 199, the Supreme Court, if it considers that an issue of public importance relating to the application of any of the fundamental rights of Chapter I of Part II, has the power to formulate order of the nature mentioned in said article”.

The often debated question is whether suo motu action is the only way for Pakistanis to obtain justice. The answer to that is clearly a no. However, this is not the right question to ask at a time when flagrant violations of the law go unpunished by the government, and the courts are forced to exert their powers. Therefore, a better question would be whether suo motu powers are a last line of defence for people looking for justice from a broken system, in which case the use of these powers becomes absolutely necessary.

Some of the most noteworthy and recent suo motu actions taken by the Chief Justice of Pakistan were related to the horrific rape and murder of Asma and Zainab, and against the former SSP Malik Rao Anwar. He also took suo motu notices in the case of the deplorable conditions in government hospitals in Karachi and Lahore, as well as the traffic jams that occur due to the movement of VIPs on the road. It should be noted that each one of these cases concerned a topic of public importance, and had a great purpose to serve for the public.

For the exercise of this competence, it is not necessary that the person who is a victim of a violation of their fundamental right approach personally the Court, the Court can take knowledge of the matter and proceed suo motu or at the request of any individual public spirit

The first two cases were of particular importance for the public of Pakistan. Many people have suffered through the same injustices that the victims of each case felt, but for the majority of these unfortunate people justice was hard to find. However, the Supreme Court did take notice of these crimes, and used their power to punish the perpetrators, showcasing the incredible significance of suo motu in our legal system.

The practice of exercising suo motu powers is not limited to Pakistan either. It can be found in other countries as well, including India. The decision of the 1995 Supreme Court of India on Shri Bodhisattwa Gautam, against Miss Subhra Chakraborty recognised the suo motu powers of the Supreme Court and stated the following:

“For the exercise of this competence, it is not necessary that the person who is a victim of a violation of their fundamental right approach personally the Court, the Court can take knowledge of the matter and proceed suo motu or at the request of any individual public spirit”

At a time when incidents of corruption and fraud are at an unprecedented level and the public remains at the mercy of higher authorities, the role the CJP has played during this time has been exemplary. He must continue to exercise his suo motu powers whenever contentious problems need a resolution and help the underprivileged when they have nowhere else to turn.

Finally, in accordance with Article 184 (3) of the Constitution, the Supreme Court is not only empowered to adopt a suo motu measure, but, as a duty, it must exercise jurisdiction over the case as well. That said, all the branches of the state, which includes the judiciary, the executive and the legislature, must ensure that the courts are operating in accordance with the constitution and that a fair trial is provided to all parties involved.

In accordance with Article 184 (3) of the Constitution, the Supreme Court is not only empowered to adopt a suo motu measure, but, as a duty, it must exercise jurisdiction over the case as well

One of the major arguments against the CJP was that his excessive use of the suo motu powers would have an impact on the executive branch of the government and would in turn endanger the rule of law in the country. This argument is completely wrong, as in many of the cases, including those mentioned above, it is established that the enforcement measures adopted by the various administrative and executive officials of the State may be questioned, among other things, under Articles 199 and 184 (3) of the Constitution. Such executive action may be subject to parliamentary scrutiny as well, while legislative action can also be challenged in the courts.

In the United States, the Constitution, under Article III, section 2, clause 1, allows courts to hear a case only if there is a ‘case or controversy’ involved. This has been interpreted to mean that the US judicial system does not have to deal with theoretical, immature and consultative cases. It can be argued that such a restriction is only possible in a mature democracy where the rule of law is accepted and public confidence in the capacity of administrative and executive bodies is guaranteed.

In less developed countries, such as those in South Asia, this ‘splendid isolation’ is unsustainable. It is true that the countries of South Asia have a much lower rate of human development and institutional integrity than those in the west. However, it would be true to say that democratic institutions need time to mature. In a democracy, almost all legislative processes involve compromises and it is unlikely that institutions can mature if their powers are infringed on by the judicial arm of the state.

Suo motu, for better or worse, is here to stay. What is needed, however, is for the courts to develop an appropriate framework for its execution, which has so far been lacking. Without it, the actions of the courts appear uncertain and unpredictable and, as one US judge said, ‘freedom finds no refuge in unpredictability.’

Your honour Chief Justice of Pakistan! You may call it judicial activism or whatever else you want but it’s time for you to act decisively. Pakistan is waging a war for its survival, beset on all sides. The machinations of the external enemy and the internal self-immolation acts of Pakistan’s rulers have destabilised the country and left it in a desperate need for a saviour. It is time you finally step up.

The writer is an advocate High Court Islamabad and teaches at the Best Law College, Rawalpindi

Published in Daily Times, June 7^th 2018.