The exercise of the constitutional power of suo motu by the Supreme Court of Pakistan has generated heated debate in the legal fraternity and in the executive branch. The executive terms it unnecessary interference in settled constitutional subjects, while the SC defends it by saying that it is a necessity born out of the executive’s slack performance in their constitutionally mandated responsibilities. This controversy is now rearing its head as a constitutional crisis.
“Suo motu” is a Latin term which means “on its own motion”. It is the power of the august court to commence litigation on its own motion, against any natural and juristic person, without properly following legal procedure. Usually, a judge initiates litigation when an aggrieved party files his or her grievances and puts them before the court.
In Pakistan, the SC has constitutionally gathered the power of suo motu in the form of article 184 of the constitution of 1973. Whenever the SC gets wind of grave human rights violations — as provided by chapter 1, part 2 of the constitution — or if any issue related to law and order gains public importance, the SC can initiate legal proceedings by utilising the power of suo motu, and can bring abrupt justice against all culprits.
The ongoing hue and cry against judicial activism on part of the government’s executive branch cannot hold the Supreme Court liable for violating the concept of separation of powers, since it is the executive that has created this abyss through its slackness and lack of interest
Is the use of suo motu unconstitutional, or is it an outcome of the lack of interest the executive branch has shown in undertaking its constitutional responsibilities?
Justice Khawaja Muhammad Sharif defended the use of suo motu by stating that he “will take notice of every matter in which the executive is showing slackness.” As Saroop Ijaz, the renowned legal commentator states, “such a presumption that suo motu can be used to remedy inaction by elected officials exposes some of the negative characteristics of judicial activism.”
I, in toto, extend my support to the aforementioned saying of the respectable judge and jurist, since it is actually the lack of interest on behalf of our Parliament, especially standing committees and ministers, in performing their duties that led to this phenomenon.
Standing committees are constituted under “The Rules of Procedure and Conduct of Business in the National Assembly, 2007”. The rules were constituted in pursuance of clause (2) of article 67 of the Constitution.
According to these rules, there shall be a standing committee of the assembly for each ministry of the government. Each committee shall not consist of more than 20 members who will be elected by the assembly. Each committee shall deal with the subjects assigned under the rules for the allocation and transaction of business of the government to the division or the ministry with which it is concerned or any other matter referred to it by the assembly.
Under clause (4) of the Rules, “a committee may examine the expenditure, administration, delegated legislation, public petition and policies of the ministries concerned and its associated public bodies and may forward its report of finding and recommendation to the ministry and the ministry shall submit its reply to the Committee”.
In parliamentary democracies, committees are regarded as the ‘eyes, ears, hands and even the brain of Parliament’. Under these rules, the constituted committee of the relevant ministry has the sole power to call up the bureaucratic staff of the ministry and hold them liable for the assigned tasks they did not carry out properly.
The ongoing hue and cry against judicial activism on part of the government’s executive branch cannot, thus, exclusively hold the Supreme Court liable for violating the concept of separation of powers, since it is the executive that is responsible for creating this abyss due to its slackness and lack of interest.
Administrative machinery of the state is in a perennial whirl around the powerful bureaucracy as the bureaucracy manages and maintains all the administrative setup of the government. If standing committees show complete loyalty towards their legal duties and instill the concept of administrative accountability within parliament by launching question and answer sessions, they may end up depriving the SC of the need to take suo motu action.
The court should also determine which issues fall within the jurisdiction of suo motu and which do not. If the SC overuses suo motu, it may find itself in open confrontation with the executive, which is not merely against the spirit of democracy, but will also hinder them from addressing longstanding weaknesses in the system.
It is thus up to both the executive and the judiciary to remain within their constitutional limits, and they must perform their duties as per Pakistan’s constitution.
The writer is a law student at the Islamia College University, Peshawar, and can be reached at [email protected]. He tweets @ziaullahkh7199
Published in Daily Times, June 8th 2018.