Daily Times

The sun has set on Mian Saqib Nisar’s legacy as the Chief Justice of the Supreme Court of Pakistan.  Under his leadership, we saw judicial activism unlike anything seen even during the era of the former Chief Justice Iftikhar Chaudhry.  More importantly, we saw suo motu, a rather obscure Latin term, become synonymous with our legal character.  Never before in our constitutional history did we see the lofty expectations regarding law and justice from the Supreme Court that we see today.

On a broader scale, we can see our society polarized between two schools of thought or shall I say, extremes.  On the one hand are the populists who see the Supreme Court as proverbial nervous system of our body politic and the panacea or cure for all executive excesses and failings.  For them, the Supreme Court registers our national pain and summons its powers under Article 184 (3) of the constitution in matters of “public importance” with reference to the enforcement of “fundamental rights”.  They see the judge as the proverbial knight, riding the stallion of constitutional authority, who slays the specter of political digression and moral decay, thus saving us from further sliding into the abyss of darkness.

Then we have those who prefer a literal interpretation of the constitution and subscribe to the separation of powers under the constitution amongst the three organs of the state: executive, legislature and judiciary.  Rejected by the proponents of this school of thought is the “vacuum theory” i.e. the indispensability of court intervention through suo motu when the other organs of the state have failed to perform their constitutional role.  Unchecked suo motu activism is thus seen as an encroachment on the authority of the other organs of the state and a judicial reimagining of infinite possibilities – a slippery slope with no end in sight.

Throughout our history, we have seen law and its first cousin justice — the two oft invoked synonyms in our legal vernacular — clubbed together to find solutions to complex constitutional and legal issues. Without a doubt, in some past instances, by exercising suo motu jurisdiction on issues relating to the enforcement of fundamental rights, our Supreme Court (and its former Chief Justice) did huge favours to this country and its citizens

But our Constitution of 1973, like the constitution of other countries, is a complex document, crafted by humans of flesh and blood which is far from perfect.  It is not without its areas that are subject to differing interpretation.  It is in this backdrop that the debate surrounding suo motu powers of the Supreme Court continues to evoke controversy.  For example, “matters of public importance” (Article 184(3)) and the Supreme Court’s power to do “complete justice” (Article 187(1)) are open to wide interpretation.  Thus when suo motu jurisdiction is invoked by an incumbent Chief Justice to do or undo what is deemed as executive inability or unwillingness to do or undo a certain act, it arouses curiosity as to whether there are any limits to this power.

Throughout our history, we have seen law and its first cousin justice – the two oft invoked synonyms in our legal vernacular – clubbed together to find solutions to complex constitutional and legal issues.  Without a doubt, in some past instances, by exercising suo motu jurisdiction on issues relating to the enforcement of fundamental rights, our Supreme Court (and its former Chief Justice) only did this country and its citizens huge favours.

However, it is a matter of concern when taking suo motu power to a whole new level, the former Chief Justice was seen visiting hospitals or initiating a dam fund drive.  His well-intentioned initiatives to fix our broken system explain his judicial activism.  However, our constitution does not presuppose a perfect system.  Rather, it presupposes a trichotomy of powers where transgression of power by organs of the state, when it occurs, will be checked by the judiciary within the bounds of the constitution.

Thus the unrestrained invocation of law and justice, as if they are the panacea or the cure for all our national ailments, is akin to aspiring to attain the judicially improbable.  Law and justice, whose elastic and malleable edges can be stretched in different time and space settings during the course of a nation’s constitutional evolution, are as much tools of social engineering as they are devices for creating constitutional overreach.

Now that the sun has set on 2018, our entire legal fraternity and the nation would benefit by getting answers to some pressing constitutional questions:  in the rather generous dispensation of justice through suo motu, could there have been a compromise of ideals of judicial restraint that require fidelity to the constitution? Is it not time for the Supreme Court, the ultimate constitutional authority with the power to ascertain the limits of suo motu, to clearly state what those limits are? Perhaps it is also time the Supreme Court relooked at whether the exercise of suo motu has been wrongly presupposing a constitutional dilemma in the sense that the other organs of the state are deemed unable or unwilling to fulfill or perform their constitutional role, hence necessitating the Supreme Court’s responsibility to step-in.

Without a doubt, the letter of the law underscored in Article184 (3) read with Article 187(1) empowers the Supreme Court with suo motu power as the court of ultimate justice.  But this constitutional power is invariably linked with a larger unresolved constitutional issue: we are all in search of the ultimate holy grail i.e. the constitutional limits of this power.  And we all have the right to know if it exists.

In September last year, the former Chief Justice expressed his intention to examine the scope and jurisdiction of the Supreme Court under Article 184(3) of the Constitution.  It is hoped that the new Honourable Chief Justice, Mr. Asif Saeed Khosa, will lead the drive for a detailed examination of the scope and jurisdiction of the Supreme Court’s suo motu powers and that this year we will see the issuance of detailed Supreme Court rules on suo motu which (i) specify the circumstances when the Supreme Court will exercise suo motu power, (ii) what would be the legal threshold requirement for matters to fall within the purview of the Court’s suo motu jurisdiction, and (iii) what would be the size of the Supreme Court bench(es) constituted to take up suo motu petitions.

Tailpiece: In his treatise “The Path of the Law” (1881), Justice Oliver Wendall Holmes Jr. of the U.S. Supreme Court propounded the “bad man” theory also known as the prediction theory.  For Justice Holmes, the bad man’s view of the law represents the best test of what exactly the law is because the bad man carefully calculates and predicts what the rules allow so he can operate within the limits prescribed by those rules.  Let us all happily aspire to become bad men for the purposes of being able to predict and operate within the path prescribed by our Honourable Supreme Court.

The author is a practicing international lawyer and a graduate of Harvard Law School

Published in Daily Times, January 19^th 2019.