Daily Times

The seemingly unfettered scope of unique ‘suomoto’ jurisdiction in our Pakistan Constitution, Article 184 (3), strikes at the very foundations of our republican form of government.

Jurisdiction is the authority given to various courts by law or constitution to hear and decide a case. Basically there are two kinds of jurisdiction: appellate jurisdiction and original jurisdiction.

Appellate jurisdiction is the authority of courts to review and decide cases or disputes on appeal from lower courts or tribunals etc — Article 185 of Pakistan Constitution.

Original jurisdiction is the power of courts to hear and decide a case or dispute that comes directly before it for resolution for the first time.

In Pakistan, the original jurisdiction conferred on our supreme court is restricted to disputes or cases between the Federal and Provincial government(s) – Article 184(1) of Pak Constitution.

However in our Pakistani Constitution, original jurisdiction has been expanded to include the so-called ‘suomoto’ jurisdiction as per Article 184 (3) – the subject matter of the present discussion.

Such jurisdiction gives Supreme Court the power to initiate cases for hearing and adjudication on its own motion or on its own cognizance — without the cases first started by a prosecutor in a trial court as is the norm in a legal system.

The controversial provision of Article 184(3) of our  Constitution empowers our Supreme Court To Assume Original Jurisdiction And  Hear And Decide cases “if it considers a question of public importance with respect to the enforcement of the Fundamental Rights (as specific in Ch 1, Part 11 of the Constitution) is involved”, and accordingly to make an appropriate order.

Our democratic Constitution is based on the pillar of separation of powers of the three branches of the government, namely, the executive, legislature and judiciary. Its further underpinned on the inalienable rights and freedoms guaranteed therein, such as the due process including right of fair trial, right of appeal, right of appeal, right of jury, right of a neutral arbiter etc.

Besides tarnishing the image of the country such exercise of excessive and unfettered power of the judiciary destroys the costly, nationwide election process, and the mandate and aspirations and choice of millions of citizens for self-governance

It is these bedrock principles of our republic that are threatened by this ill-advised ‘suomoto’ jurisdiction given to our Supreme Court. Let’s examine why.

Firstly, the overly broad language of this ‘suomoto’ provision – “question of public importance with respect to the enforcement of the Fundamental Rights” – is inconsistent with the basic rules of drafting constitutional text.

Under this doctrine, clauses that are too broad or ambiguous have been deemed unconstitutional since they are not conducive to precise interpretation and a single meaning.

Secondly, the sweeping nature of the scope of ‘suomoto’ jurisdiction gives unfettered, almost limitless jurisdiction to our apex court since by and large any matter under the sun can be interpreted as a “question of public importance with respect to the enforcement of Fundamental Rights”.

Indeed our supreme court has interpreted this text to hear and rule on matters ranging from the price of samosas, to management of a hospital, to appointment of corporate officers, to performance of sports teams, to dismissal of parliamentarians and Chief Executives of the country.

Thirdly, and more importantly, the wide jurisdiction has led the Supreme Court towards diluting and usurping the separate, exclusive powers of the other two branches of our democratic system, the Executive and Legislature, as enshrined in the Constitution.

Impulsive exercise of ‘suomoto’ jurisdiction weakens and undermines, rather than strengthens various institutions of our country including the judiciary itself.

The leapfrogging over lower courts in pursuit of ‘suomoto’ sends a loud message to the people that our lower courts are incapable of delivering justice, thus weakening the institution of judiciary.

On the other hand our endeavour should be to ensure that the entire court country’s system is confident, strong and capable enough and accessible to protect and enforce fundamental rights of even the disenfranchised citizens.

Judiciary’s interference through ‘suomoto’ hearings in the deliberations of the National Assembly, ruling on qualification or disqualification of the members and on internal matters of parliamentary affairs; encroaches upon the exclusive legislative power of the parliament.

Such actions have resulted in casting doubt and disrespecting the legislative enactments, undermining the plenary powers of the legislative branch to make laws and supremacy of the legislative branch.

It wouldn’t be hyperbolic to assert that the apex court exercising its ‘suo’moto jurisdiction at times seems to dampen the constitutional powers of the executive branch to implement the laws and run the country effectively.

In ‘suomoto’, “notices” the Supreme Court has interfered in and negated proper functions of the executive government such as appointment of officials, administration of bureaucracy and government entities.

It acts like a defacto government or a super prime minister, second guessing, overriding the proper actions of the executive government and even removing prime ministers and dismissing government officials.

Fourthly, we should never underestimate the cloud of political instability and the resultant economic uncertainty and downturn the one-size-fits-all ‘suomoto’ sledgehammer creates. Serial dismissals of elected prime ministers and parliamentarians by judicial fiat and ‘suomoto’ trickery, is not a simple matter without disastrous consequences for country.

Besides tarnishing the image of the country such exercise of excessive and unfettered power of the judiciary destroys the costly, nationwide election process, and the mandate and aspirations and choice of millions of citizens for self-governance.

It erodes the sovereignty of the people to rule themselves while conflating judiciary as a kind of supra government lording over the duly elected government of the people.

The next edition of this article, will continue delineating and analysing the ‘suo motto’ jurisdiction, and its implications for democracy.

To be continued

The writer is a US-based attorney, ex Gen Counsel, author, analyst and speaker

Published in Daily Times, October 12^th 2018.