Business Recorder Editorial Feb 14, 2019

Suo motu powers issue

In furtherance of the ideas expressed in his first speech on January 17, 2019, in which Chief Justice of Pakistan (CJP) Asif Saeed Khosa had indicated the need to determine the scope and parameters of the exercise of the original jurisdiction of the Supreme Court (SC) under Article 184 (3) of the Constitution, a full court was summoned by him for this purpose. However, whereas the CJP had spoken about using the SC’s jurisdiction under Article 184 (3) very sparingly in respect only of issues of national importance where either there is no adequate or efficacious remedy available or has been rendered ineffective or incapacitated, his brother judges seem to have failed to reach a consensus on the issue. The minutes of the February 6 full court meeting seem to have fudged the issue by saying that after a threadbare discussion, the court’s jurisdiction under Article184 (3) would be exercised “in accordance with the Constitution”. This neither explains anything nor resolves the contentious palette of opinions regarding the issue. In fact it reflects the failure of the full court to agree on how to reverse the surfeit of judicial activism that has incrementally overturned our jurisprudence of long standing based on judicial restraint since former CJP Iftikhar Mohammad Chaudhry’s court. What CJP Asif Saeed Khosa desired was for the full court to consider an amendment in Order XXV of the SC Rules regarding the scope of the SC’s exercise of its jurisdiction under Article 184 (3), in accordance with the suggestion of the Supreme Court Bar Association (SCBA). Since consensus seemed to have been lacking, the minutes appear to have papered over the differing points of view, leaving no one the wiser about what the future may hold in this regard. Arguably, since the issue remains unresolved, future CJPs would be free to adopt varying interpretations of the SC’s jurisdiction. The SCBA had also pressed for the right of appeal against verdicts delivered by the SC using its original jurisdiction under Article 184 (3) as interpreted by the court. As matters stand at present, no right of appeal is available against a verdict of the SC after taking suo motu notice of any matter.

As things have played out over time, the SC’s suo motu powers have been used to intervene in politics using Article 62 (1), which critics hold is not the SC’s domain, even in the face of the executive’s failure to deliver good governance. The SC’s quo warranto jurisdiction has been employed to oust a number political leaders, judges and bureaucrats, but there exists no check on the court’s authority. Now since it has emerged that the apex court judges failed to find a consensus on this by now contentious issue, perhaps the time has come for parliament to take it up with a view to restoring the trichotomy of powers inherent in our constitutional framework. Although this would appear the wisest course under the obtaining circumstances, there is scepticism aplenty that given the present state of dysfunctionality of parliament because of the tensions between the treasury and opposition, it may turn out to represent little else except the triumph of hope over reality. It goes without saying that legislation to define or redefine the original jurisdiction of the SC under Article 184 (3) is in the vital interests of parliament and the executive, the two pillars of the state that have been most affected by the veering of our superior judiciary towards an expanded jurisdiction on the basis of constitutionally guaranteed fundamental rights, particularly the SC. It is a test of the wisdom of our political class therefore whether they can rise above their relatively mundane day-to-day differences rooted in political rivalry and legislate a course correction.