Constitutionality of suo motu

By the end of WWII, many liberal democracies ceded power to judiciary for the enforcement of human rights. The framers of our constitution had intended the same to empower our superior courts to assure civil liberties. For this purpose, Chapter 1 of Part II of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees the Fundamental Rights, which are widely known as the “conscience of our constitution”.

To ensure the enforcement of Fundamental Rights, the founding fathers of the constitution empowered the judiciary specifically by incorporating Article 199 for approaching a High Court, and likewise, Article 184(3) for the Supreme Court in case of an infringement of any fundamental rights. However, the exercise of the Supreme Court’s original jurisdiction under Article 184(3) is contingent on matters of “public importance” involving any violation of the fundamental rights of the citizens. The Court under the said Article is additionally equipped to take notice of a matter on its own, without the need for a formal complaint or petition to be filed, which is called suo motu.

The plain reading of the said Article doesn’t enunciate who has the right to approach the Supreme Court, which broadens the court’s original jurisdiction among the judiciaries in the South Asian region. For instance, any party may petition in the Supreme Court of Pakistan, under Article 184(3), whereas Article 126 of the constitution of Sri Lanka and Article 102(1) of the constitution of Bangladesh only allow petitions by aggrieved parties. And the provisions also allow the Supreme Courts in these jurisdictions to take suo motu notice in matters of public importance. In all these countries, also in India, the judiciary is under heavy fire, owing to the misuse of suo motu power. This often happens when the court exercises its power to promote its own agenda, rather than for dispensing justice.

In Pakistan, the rise of suo motu under Article 184(3) started with the advent of Iftikhar Muhammad Chaudhry, the former chief justice, who exercised unbridled judicial powers under the umbrella of suo motu which eventually threatened the rule of law. His successor, Saqib Nisar, took it to another level while many other chiefs justices preferred a restraint.

For a long time, there have been rising concerns and fears amongst the bureaucracy, legislatures and other power brokers of the country that the judiciary is overstepping its legal boundaries by regularly taking suo motu cognizance, based more on political vendetta rather than on a bona fide legal interpretation of matters of “public importance”. Critics opine that the SC has been favouring PTI through suo motu notices by denying PML-N members the right to a fair trial. The “disqualification” judgments of the PML-N supremo is a case in point.

The parliament came up with an infamous solution at a critical time when the country is already battling with political, economic and terrorism issues to enact the Supreme Court (Practice & Procedure) Bill, 2023, which will require a three-member bench of the apex court, comprising the CJP and two senior most judges, to decide whether to take up the suo motu matters, which is a bar on the prerogative of the Chief Justice. The SC has barred the parliament from enforcing the proposed law. However, it seems quite revolting on the part of the parliament which is transgressing on the rights of the SC enshrined under Article 191, mandating the court to formulate its own rules to regulate its practice and procedure. To the common man, it doesn’t make sense how a parliament could formulate rules for an apex court in the presence of Article 191. This act solely conflicts with the independence of the judiciary.

What if the court takes up the matters of parliamentary rules and procedures, and starts dictating to parliament on conducting its affairs? So let the SC amend its own rules. As for the misuse of suo motu powers, both the parliament and judiciary should try to address it collectively by consenting to rules that allow the exercise of such powers in a transparent manner, but they should only come from within the SC.

Published in The Express Tribune, April 29^th, 2023.

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