In the past few weeks, the Supreme Court (SC) has accelerated the pace of taking up cases of human rights violations and public interest cases in exercise of its suo motu power (under Article 184 (3) of the constitution). This rise in suo motu actions by the Chief Justice of Pakistan has once again stirred the debate on the use of this constitutional power enjoyed by the apex court.
However, the legal fraternity believes this power is not “unbridled”. It calls for developing a proper framework to dispel the impression of “judicial activism” and the apex court assuming the role of executive through such powers. Some people are of the view that when the court itself starts taking cognizance of a matter instead of the aggrieved parties bringing it to the court, it compromises its own neutrality to begin with.
“Suo motu may be a constitutional power but it does not give any judicial authority to the Supreme Court. The court cannot run trial of these cases but can give directions,” says senior lawyer and former federal law minister Dr Khalid Ranjha. “It gives the impression that the system is not working; that the executive has failed.”
“Ideally, there is no need of such actions since institutions are duty-bound to play their role in addressing issues related to their departments. And if people are not getting the service, the heads of those institutions should be brought to book,” he says, suggesting “total restraint” while exercising this power. “Judiciary loses its dignity by assuming this role, and its own work is also ignored.”
Maryam S. Khan, a research fellow at a think tank, brings in an interesting angle where she pitches suo motu against public interest litigation (PIL). “In the past decade, the Court has dramatically expanded the types of cases that qualify as ‘public interest litigation’, unabashedly allowing citizens at large to challenge the democratic deficit in both the legislative and executive branches of government. There is now an emergent class of ‘public interest’ lawyers, organisations and litigants who readily engage in this kind of strategic litigation. In the presence of this highly accessible mode of engagement between the judiciary and the public, one may legitimately ask, is suo motu not redundant?”
Redundant or not, it is considered a game-changing feature with regards to the balance of powers among the three main pillars — legislature, executive and judiciary.
The Supreme Court acts upon news appearing in the media, its own understanding or judgement or from applications filed by people seeking justice through the human rights cell of the court. This cell reviews all applications and submits important ones before the CJP which are converted into suo-motu notices if the chief justice so desires.
“The really controversial aspect is the expansive exercise of those powers,” says Faisal Siddiqi, a senior lawyer based in Karachi. “This exercise of constitutional power did not start with former CJP Iftikhar Chaudhry but it goes back to 1988 when Benazir Bhutto filed the first PIL case.”
However, the expansion of judicial power or what was called in 1960s in the US “government by judiciary” is happening all over the world now, he views. “We also see same thing happening in the Indian Supreme Court in 1978 onwards. Actually, very early judgments of our apex court on the use of this suo motu power in 1989-90 are almost a repetition of Indian judgments.”
Siddiqi says this became a global trend in the post world war era — in Latin America, South East Asia, Africa and even in the European paradigm with an expanded exercise of judicial review. “It has been given a name “juristocracy” and through this, you see more and more state and societal issues going through a process of judicialisation, and disappearance of the traditional notion of separation of powers.”
Khan is not convinced. Because, in her view “in setting its own adjudicative agenda, the SC is not accountable to anyone. The exercise of suo motu is such that the court may prioritise whatever matter it chooses without providing any justification for its decision and, thus, without holding itself to any principles requiring uniform, objective or transparent application of suo motu power.
“The result is the Court’s indulgence in highly political issues for enhancing its political legitimacy and power and a strikingly low, even negligible, attention to matters involving the repeated violation of basic human freedoms like life, liberty and due process.”
Siddiqi agrees there are problems in it, but he only sees the application of this power increasing in future “because two things are happening — societies are becoming complicated, and Pakistani state and the states everywhere are unable to cater to the various issues which now arise”.
In his view, this expansion of judicial power in Pakistan is a historical trend. “Justice Nisar is a classic example of that because this is a judge who has always believed in a conscious exercise of judicial power. But the legitimacy or power of this institution is now attached to its relevance to the lives of people. And no judge can resist that. Former CJP Jamali tried to not do anything; that is why he has been consigned to the dustbin of history.”
However, the sitting CJP denies the impression of any such ‘activism’. “We are not fond of judicial activism in any way. But we will take action on negligence of duty at every cost. We are aware of our powers and we will not go beyond them,” he is said to have remarked in a hearing where the court had summoned a federal minister in a case pertaining to Capital Development Authority (CDA) rules.
“This genie cannot be put back in the bottle. Any judge who comes will be captured by judicial power,” Siddiqi foresees. However, he feels the need of certain procedural rules, right to appeal, more awareness among people as the courts use this power which is “not yet done, sadly”.
Khan opines that the Court does not exercise its suo motu power in a vacuum. “With a current total backlog of 30,000 cases (a fairly sizeable portion of which are suo motu cases), every new suo motu taxes the Court’s precious time and resources, deplorably reducing the Court’s ability to adjudicate routine appeals and public interest cases efficaciously,” she says.
So, is this a problem of inefficiency? “Not merely that; this is a problem of miscarriage of justice at an institutional level — one for which no amount of judicial activism against the government’s misdemeanors can compensate,” says Khan.
Siddiqi holds that courts are giving out very far-reaching judgments. “But the reasoning behind those judgments has to be very sound. Sadly, judges while using this power focus on conclusions rather than reasoning which is quite dangerous. This power now has to be, in a sense, structured and controlled by procedural law which does not exist yet,” he says. Educated critics of this power, he says, should look at the new jurisprudence developing all over the world which has “both good and bad points”.