The power of suo motu

The nation’s top judge has taken a sua sponte action for the first time in his tenure since assuming charge on December 21, 2019. The Chief Justice of Pakistan, Justice Gulzar Ahmed, chose to invoke this power vested in his office to address the dire situation resulting from the novel coronavirus pandemic and just how the government went about coming to grips with it. The move, taken without formal prompting from another party, which is how a suo motu action is described in law, is a clear indication that the judiciary is at best not satisfied with the way the government has handled the critical situation thus far. The top court has fixed April 13 as the date for hearing the matter. The top judge had dropped some broad hints about his dissatisfaction with the government’s measures to flatten the virus curve in the country in recent court proceedings. “The government is just calling in meetings whereas no work is being done on the ground,” he had remarked while hearing a petition filed against the Islamabad High Court (IHC) verdict of releasing under-trial prisoners in view of Cvoid-19 fears.

We will have to wait and watch with interest just how the five-member larger bench constituted for the case brings to closer scrutiny the government performance. But as this is the first suo motu action taken by the sitting CJP, some thoughts about its exercise may not be out of place. Opinion is sharply divided in the legal circles about the merit of invoking suo motu power. Indeed, some public interest issues, which often fail to garner government attention, come to the limelight once the apex court takes up hearing of its own accord. This sometimes leads to resolution of those matters. But critics of this power often class it as judicial activism. These two strands of opinion are why not all chief justices take a unified approach to using this power. The sitting CJP’s predecessor, Justice Asif Seed Khosa, for instance, never exercised this power. Justice Iftikhar Chaudhry and Justice Saqib Nisar used it liberally while three other top justices exercised the power sparingly. We tend to favour finding the middle ground.

 

Published in The Express Tribune, April 13^th, 2020.

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