Monday, September 10, 2018

Business Recorder Editorial Sept 11, 2018

Suo motu powers

Chief Justice of Pakistan (CJP) Mian Saqib Nisar heading a three-member bench of the Supreme Court (SC) has taken up a case relating to the scope and jurisdiction of the SC under Article 184(3) that empowers the court to intervene in matters related to fundamental rights. The Article also allows the court to initiate suo motu proceedings in such matters. All the applications on the issue before the SC have been clubbed together. The SC appointed two senior lawyers to act as amici curiae (friends of the court) and asked the Pakistan Bar Council (PBC), the SC Bar Association and the Attorney General to assist the court in determining whether it is exceeding its jurisdiction with respect to Article 184(3). Given the trend since former CJP Iftikhar Mohammad Chaudry’s tenure of the SC using its suo motu powers virtually indiscriminately, Justice Qazi Faez Isa’s three-page note in May 2018 assumes critical importance. Justice Isa had raised serious questions over the manner in which public interest litigation was being initiated by the Human Rights Cell of the SC. He argued that before exercising its original jurisdiction under Article 184(3), the SC should satisfy itself that the jurisdiction it was assuming was in line with the Constitution. He said once the SC was satisfied that the conditions of public importance and fundamental rights were involved, only then the question of enforcement of the relevant fundamental rights arises. This approach has been conspicuous by its absence in the plethora of suo motu cases the SC has taken up under CJP Saqib Nisar, far more, it may be added, than even former CJP Iftikhar Mohammad Chaudhry. This all too frequent use of suo motu powers, in glaring contrast with our jurisprudence of the past when such powers were used extremely sparingly, have become a cause of concern for politicians and many lawyers. Politicians have been criticising this practice as judicial interference in the affairs of other institutions, including the executive and parliament. A number of politicians, particularly from the PPP and the PML-N, faced disqualification in cases taken up quo warranto under Article 184(3) by the apex court. The superior Bars and many lawyers too have expressed reservations about this unfettered use of suo motu powers by the SC.

Now that the CJP-headed bench has taken up the case, the complaints by lawyers that excessive use of suo motu powers without determining the limits or constraints to the provision risked adverse effects on the judiciary’s credibility may finally be adjudicated. However, the PBC has argued that given the importance and sensitivity of the issue, perhaps a full court hearing would be appropriate. Some amongst them have wondered at the CJP taking up the issue of determination of the limits and constraints on the SC’s powers in this matter a mere four months before the retirement of CJP Saqib Nisar. That questioning is tempered by the thought that perhaps it is not too late to correct what appears to have become almost an established practice. In any case, better late than never. The effects of the excessive use of suo motu powers have revealed themselves over time. First and foremost, when the SC exercises its original jurisdiction under Article 184(3), it deprives litigants of access to the lower tiers of the judicial system. Further, there is no appeal from the verdict of the SC. A Bill to allow appeals against such verdicts is still pending in parliament. In the view of some lawyers, the excessive use of suo motu powers under Article 184(3) has often sealed the fate of an aggrieved party, especially when a different issue or aspect was brought to the court’s notice during such hearings. No one, least of all our leading lawyers, has suggested taking away such powers completely, as this may render the apex court toothless in matters clearly related to fundamental rights. But constraints and limitations have suggested themselves precisely because of the excessive use of the SC’s powers. The fact that the CJP has decided to hear the issue suggests that perhaps the superior judiciary itself has finally woken up to the adverse effects and implications of this practice in recent years.

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