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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