The apex court has deliberated on an issue of highest importance as it pertains to the privilege and discretionary powers of the Chief Justice of Pakistan. In unequivocal terms, a five-member bench of the Supreme Court ruled that, “the chief justice of Pakistan is the sole authority by and through whom … suo motu can be, and is to be, invoked/assumed.” There couldn’t be any two opinions over it. The Constitution of Pakistan as well as conventions and precedents empower the top judge to exercise in his rights the decision to take suo motu notice. The explicit wording and interpretation of Article 184(3) of the Constitution makes it obvious, too; as the powers to take notice of an imminent issue of public interest lies only with the chief justice of the Supreme Court.
A glance at our judicial history suggests that in two decades after the 1973 Constitution, the apex court took no suo motu notice. But during the last decade or so, it became a routine affair as honourable chief justices frequently used their powers to initiate suo motu proceedings which, regardless of good intentions, were often criticised. At times, such action is seen as interfering in the powers of the executive, as government officials and ministers were seen in the dock.
The debate over suo motu powers, and who and when it should be invoked is not new. Jurists have often differed and took exception to its necessity and usage, altogether. Basically, suo motu powers are vested to enable the court to set aside procedural details in order to directly intervene if the fundamental rights of citizens are transgressed. There are also precedents which point out that even if any of the Brother Judges propose suo motu action, then the matter should be referred to a committee, and finally the chief justice is authorised to take a call over its admissibility. The beauty is that the judge who proposes it recuses from the bench constituted to hear the case under suo motu notice. This makes it crystal clear what the five-member bench under Acting Chief Justice Umar Ata Bandial ruled on August 26, observing that only the chief justice can invoke or assume the said jurisdiction.
Published in The Express Tribune, August 28th, 2021.
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