In law, suo motu or suo sponte (Latin for ‘of his/her/it’s or their own accord’), as it is properly referred to, describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request made to the court by any party. There are arguments for and against the application of suo motu within any democratic state. The question that arises is whether the democratic process is being derailed via the application of suo motu notices.
There are two views that can be taken. The pro-justice view would advocate that the use of suo motu notices as a form of judicial review by the court brings forward issues that may be ignored by elected institutions. On the other hand, an anti-democratic view subscribes to the idea that without a particular form of accountability in respect of its application, the use of suo motu notices is inappropriate because it supersedes the element of due process, which is essential in the development of a real democracy.
Pakistan is one of the very few countries in the democratised world where suo motu notices have been actively utilised as a doctrine by the courts. The only other country where this is more in use is India. However, the number of suo motu actions considered independently of the population size, the specific nature of instances and outcomes, is not indicative of the perpetuation of greater justice in a comparative study between India and Pakistan in this context. There has also been exercise of suo motu in other common law realms such as Bangladesh in a minimal fashion.
Under Article 184 (3) of the constitution, the Supreme Court (SC) may take suo motu action if there has been a violation of fundamental rights, which are listed under Chapter 1 of the constitution. The constitution does not explicitly exclude other courts from the right to exercise the doctrine. Perhaps the devolution of this right to the lower courts should be viewed as rather scary by all proponents of due process. There have been a number of cases the SC has taken up suo motu recently. These range from imposing price ceilings on consumer goods to regulating utility tariffs. The SC has been doing so to protect fundamental rights. Does this intervention then indicate a failure of all markets as well as institutions? NEPRA has been unable to regulate tariffs whereas parliament fails to address the application of Qisas and Diyat in the case of Shahzeb Khan, which highlights the inefficiencies inherent in parallel systems of justice. Hence if this view is acceptable, then each instance of suo moto action presents an account of failure on the part of the government to protect the fundamental rights of its citizens as viewed by the highest judicial institution.
The cases taken up by the SC are those that the media has publicised, and by this token, were politically charged and popular. This ‘popularity contest’ approach has given critics of the Chief Justice ammunition. Abid Saqi, the president of the Lahore High Court Bar Association, has criticised the Chief Justice: “He has destroyed the judiciary as an institution and destroyed the constitution as a sacred document for his own personal aggrandizement.” The critics of suo motu as it is applied today view it as not as an instrument to deliver justice but rather as a tool used by an unelected institution to capture and consolidate power. And then, of course, there is a huge problem of burdening a clogged up judicial system and delaying attention to citizens following due process in their attempt to seek justice. There are 1.5 million cases pending in Pakistani courts and the system is straining under the burden.
Suo motu notices and their application, at least in their current form, are unpredictable and undefined, with the courts not adhering to specific jurisdictions. It is inevitable then for suo motu to come into conflict with institutions and have over-reaching effects. Future Chief Justices may need to have a certain level of foresight in judging the use of this doctrine along with its merits. The concept stands necessary in a developing state but not in the unchained form it currently exists.
The writer is the CEO of Manzil Pakistan, a public policy think tank in Karachi. She is also a Visiting Faculty at IBA and a Director of a private conglomerate. She holds an MSc in Economics from Birkbeck College, London and an MBA from Imperial College London