Making sense of suo motu

SC of Pakistan has been empowered by the Constitution to take suo motu action for enforcement of Fundamental Rights.

There is a clichéd ancient Chinese curse, “may you live in interesting times”. And with interesting comes the unpredictable. Certainties are preciously rare in Pakistan today. Yet one can be sure that each day someone someplace will come on television and ask for the Supreme Court to take ‘suo motu’ cognisance of something. This sureness should evoke ambivalence. In the public discourse, there are disagreements, sometimes ferocious, about particular suo motu actions and, in some case, the lack thereof. However, the general principle of the desirability of the suo motu is hardly questioned, at least not meaningfully.

The legal argument for suo motu action is simple. The Supreme Court of Pakistan has been expressly empowered under Article 184 (3) of the Constitution to take suo motu action for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution. The self-evidently lucid article of the Constitution establishes the mere ‘permissibility’ of suo motu notice for the Supreme Court (note it does so only for the Supreme Court, the power for the High Court is never explicitly mentioned and is extremely tenuous at best). It is significant to notice that it establishes permissibility and does not mandate or oblige the Supreme Court to do so in specific cases. It is one of those laws that are in theory impossible to infringe. Hence, the Supreme Court can choose not to take suo motu notice at all. In any event, I disagree, albeit respectfully, with the very existence of the power of suo motu. My argument should not be construed as being against the Honorable Supreme Court, but rather the principle of suo motu. More significant than the formalistic legal argument is the normative acceptance of judicial intervention.

The Latin term ‘suo motu’ literally means ‘on its own motion’. Hence, the logical and semantic absurdity of demanding a suo motu should be obvious. It could not be entirely suo motu if requested. However, my problem with suo motu and the demand for it is faintly more fundamental and qualitative. The suo motu notice makes victims of impossibly horrific tragedies into raucous attention-seeking school children. It re-enacts the ‘Court’ in the antiquated sense, where courtesans sinisterly battled for regal notice, each trying shamefully to burn more brightly than the others. Sometimes, even when the notice is taken, as for example in the missing persons case, it can only be accorded momentary attention and hence leaves the subjects thoroughly unsatisfied and teased due to splendours withheld. Those wronged by ghastly actions are left to plead for clemency, rather than assert any right. The suo motu has transformed us into a nation waiting for providence.

In Charles Dickens’ Oliver Twist, the miserable Mr Bumble is intimated by Mr Brownlow, the lawyer, who says that the law supposes that ”your wife acts under your direction”. Mr Bumble replies saying: “If the law supposes that... the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.” The licentious pre-emption of Oliver Wendell Holmes by Mr Bumble has an uncanny profundity, especially applicable to Pakistan. Suo motu, like any other law, cannot be viewed or applied in a vacuum completely impervious to our experience. The rationale used extensively to justify exhaustive judicial activism in general and suo motu in particular has the underlying assumption that parliament and the executive are incompetent and have failed to deliver. There is not a lot intrinsically wrong with the argument, except that it has been used on multiple occasions in our checkered history to justify periodic ‘military activism’. The fact that elected people are circumvented and, perhaps, even worse, they themselves ask to be bypassed almost every time suo motu cognisance is taken, is a frighteningly familiar principle. It feeds the archaic urge of being governed by a ‘benevolent dictatorship’, it is the lust for totalitarianism.

An apparently more meritorious and subtle utilitarian argument is that suo motu notice at least allows some people to attain justice, which is more desirable than an equitable unfairness for all. A case in point is the suo motu notice of the brutal murder committed by Rangers in Karachi. Individual cases like these are unexceptionably hard to argue with. Yet for every Sarfaraz Shah, there are several Saleem Shahzads that go ignored and various Atiqa Odhos hogging valuable time and energy. It stifles the formation of a system where the heirs of Sarafraz Shah and Saleem Shahzad are able to go to court and get justice as a matter of human right, not due to hazy munificence. The essence of unfettered discretion is inequity. Nietzsche in Beyond Good and Evil impliedly argues that despotism is not necessarily oppressive law, but rather is the “tyranny of capricious law”. And there is admittedly arbitrariness in suo motu actions. There is bound to be randomness as carte blanche is to be exercised by mortals, even if it is by mortals of great wisdom and equanimity. The distinction between ‘rule of law’ and ‘rule of men’ is instructive. Suo motu powers confer a grandiosely divine supremacy on to unelected government officials. The fact that they are seasoned, meticulously appointed government officials cannot obscure the fact that they remain unelected.

The trite saying “give a man a fish, you feed him for a day, teach a man how to fish, you feed him for life,” is relevant. Suo motu notices allow for the sordid, discriminatory legal system to flourish with a lucky draw being conducted one day at a time. The people are being sent a message that instead of approaching the courts, which would also necessitate the establishment of a uniformly accessible justice system, they should weakly hope for a miracle. Miracles are hardly ever democratic. Laziness thrives under this dispensation. Suo motu notice allows for fleeting relief from systemic problems, while inadvertently according legitimacy to those very systems it seeks to fight.

Published in The Express Tribune, June 15^th, 2011.