Suo motu: the watchmen are watching

Analogical reasoning may dictate that suo motu must not be exercised by the Chief Justice alone, but the SC as a whole


Ebrahim Saifuddin September 16, 2021
The writer is a practising lawyer based in Karachi and member of the Association for International Arbitration (Brussels). He can be reached at [email protected]

A concept not alien to the sub-continent is exercised by a number of bodies within their respective domains as allowed by law. While one can argue that such powers can be misused to affect the efficiency of a system, the other side advocates for its necessity to keep checks and balances. An efficient constitutional structure is based on the foundations of separation of powers but such an absolute separation, apart from maybe a utopian system, cannot and should not exist to ensure that, at the very least, fundamental rights are not infringed.

Article 184(3) of the 1973 Constitution clearly spells out that the Supreme Court shall have the power to make order, as provided for in Article 199, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights is involved. Whether this provision provides for suo motu powers is dependent on determining if a complaint can be filed only by an aggrieved person (as is in the case of the High Courts in accordance with Article 199) or Article 184(3) is free from the procedural trappings and limitations of Article 199. Much has been penned down in numerous judgments of the apex Court on this matter. It is established that no locus standi is required as far as Article 184(3) is concerned.

By exercising its suo motu powers, the apex court has, in the past, made orders on issues of public importance including, but not limited to, matters involving the environment, condition of women in jails, custom of Sung Chutti or the famous Steel Mill case. There will always exist the debate between the benefits of suo motu jurisdiction, breach of the doctrine of separation of powers and judicial activism, amongst others. Nevertheless, the scope at the moment is not to delve into such a debate; rather, who should have the right to exercise this power.

For this purpose, reference is made to the landmark decision of the apex court in the case known famously as the Mustafa Impex case. While detailed facts of the case are irrelevant to discuss here, the case involved an argument which necessitated that “Federal Government” and subsequently “Cabinet” be defined. Article 90 of the 1973 Constitution was referred to whereby it states that the Federal Government consists of the Prime Minister and the Federal Ministers (i.e. the Cabinet). While expounding on the Cabinet as described by the Constitution, the Court observed that as per Article 91, although the Prime Minister is the head of the Cabinet, he can neither replace or supplant it, nor be a substitute or surrogate for the Cabinet.

Therefore, the apex court reasoned that the Prime Minister cannot exercise powers bestowed upon the Federal Government or the Cabinet by himself as in that case the Prime Minister, by himself, as a single individual, becomes the Federal Government. Such powers must be exercised by the Cabinet as a whole or else, as the Court observed, it will be the antithesis of a constitutional democracy and a leap towards the monarchical form of governance. In other words, the arbitrariness of the Prime Minister is under an internal check and balance by involving all the Federal Ministers in exercising power granted to the Cabinet.

Keeping these observations in mind, an analogy may be drawn with respect to the suo motu powers of the Supreme Court. Article 184(3) bestows suo motu power upon the Supreme Court and Article 176 of the Constitution explains that the Supreme Court shall consist of a Chief Justice and as many judges as determined by Parliament (or in the absence of such determination, by the President). Analogical reasoning may then dictate that suo motu power must not be exercised by the Chief Justice alone, or any other single Judge of the Supreme Court for that matter, but rather the Supreme Court as a whole.

It may then be appropriate if the Chief Justice, in consultation with all other Judges of the Supreme Court, takes a collective decision on whether suo motu jurisdiction should be exercised or not; at the very least in matters taken up based on news reports. This way, in my opinion, the question of “Who is watching the Watchmen?” will also come to rest.

Published in The Express Tribune, September 16th, 2021.

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