By: Qurrat-ul-Ain Rehman

The Only Way to Justice?

The power to take a Suo Motu notice is incorporated in Article 184(3) of the Constitution of the Islamic Republic of Pakistan with respect to the initial jurisdiction of the Supreme Court. This article reads:

“Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.”

An oft-debated question is whether a suo motu action is the only way for Pakistan to obtain justice. The answer to that is clearly a NO. However, this is not the right question to ask; the good question is whether an action under the suo motu powers granted to the Supreme Court is the most important means of defending justice. In this perspective, the actions of the Chief Justice of Pakistan (CJP) are perfectly legitimate – and indeed necessary.

Some of the recent suo motu notices taken by the CJP refer to the rape and murder of Asma Rani and Zainab Ansari, and against the former SSP Malir Rao Anwar. Suo motu notices were also taken with regard to government hospitals in Karachi, traffic jams on roads across the country due to the VVIP movement and the conditions of Lahore’s government hospitals. It should be noted that the only common thing in all these cases is that they all involve a topic of public importance, so they cannot be considered frivolous or beyond the powers conferred by the Constitution on the Supreme Court.

In addition, in cases such as those of Asma, Zainab and Anwar, several similar incidents had already occurred and reported to the authorities. However, the victims and their families remained deprived of justice, leaving the Supreme Court to take matters into its own hands. Pakistan has always faced many cases of negligence on the part of the police, which ultimately led people to lose confidence in our judicial system. Suo motu becomes crucial to restore this confidence in the judiciary.

The practice of exercising suo motu powers is not limited to Pakistan only, courts in other jurisdictions, such as India, also enjoy these powers. A decision, dated Dec 15, 1995, given by the Supreme Court of India in the famous case Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty recognized the suo motu powers of the Supreme Court. The verdict stated the following:

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“For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the Court as the Court can itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited individual.”

At a time when incidents of corruption and fraud have unprecedentedly increased while the public remains at the mercy of higher authorities to act, the role of the CJP has been exemplary. He must continue to exercise suo motu powers unless decisions on such actions are taken quickly and thoroughly.

Under Article 184(3) of the Constitution, the Supreme Court is not only empowered to adopt a suo motu measure, but is also duty-bound to exercise jurisdiction over the cases related to basic human rights. That said, all state organs, be they the judiciary, the executive or the legislature, must ensure that the law operates in accordance with constitutional restrictions. It is only after a collective and harmonious effort by each of them that justice can be dispensed in its purest form.

An argument against the CJP was that by taking such measures, he intervened in the executive domain, thus endangered the rule of law. This argument is totally wrong since many cases, including those mentioned above, establish that the enforcement measures adopted by the various administrative and executive officials of the State may be questioned, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action may also be subject to parliamentary scrutiny. Legislative actions can also be challenged in the superior courts.

In the United States, the Constitution, under its Article III, section 2, clause 1, allows courts to hear a case only if there is a “case or controversy” involved. This has been interpreted to mean that the US judicial system will not deal with theoretical, immature and consultative cases. Indian courts also have long been at the forefront of suo motu cases, both in number and scope.

It can be argued that such a restriction is only possible in a mature democracy, where the rule of law is accepted and public confidence in administrative and executive bodies is intact. In less developed countries, such as those in South Asia, this “splendid isolation” is unsustainable. It is true that the South Asian countries have much lower rates of human development and institutional integrity than those in the West, but it would also be true to say that democratic institutions need time to mature. In a democracy, almost all legislative processes involve compromises and it is unlikely that institutions can, in fact, mature if they are constantly reduced by the judicial organs of the state.

Suo motu, for better or worse, is here to stay. What is needed, however, is for the courts to develop an appropriate framework for its scope and execution, which has so far been lacking. Without this, it leads to uncertainty and unpredictability of the actions of a court and, as one US judge said, “Freedom finds no refuge in unpredictability.”

What is Suo Motu?

Suo motu means ‘of one’s own motion’. The expression implies a consideration, discretion and option. The court initiates proceedings ‘suo motu’, i.e., on its own, without any party approaching for it. Mostly, the court intervenes so as to check the abuse of power by the executive, often in cases of violation of human rights and public interest.

The paramount reason why the constitution has not conferred suo motu powers on the high courts is that it discourages people from following due process, the right of an aggrieved person to move the courts when his or her rights are infringed.

Appeal to Chief Justice Mian Saqib Nisar

Mr Chief Justice! Call it judicial activism or anything; it is time for you to act decisively. Pakistan is waging a war for its survival, both because of the machinations of the external enemy and the internal wrongdoings of its rulers. You must ask all provincial governments to immediately build small dams and hold a referendum in the country on the construction of the Kalabagh Dam.

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