Suo motu — a distorted instrument rendered unrecognisable in Pakistan

Earlier this week, a new bill was introduced in the National Assembly, almost a year after the last amendment, seeking changes to the Supreme Court’s suo motu powers. The bill demands that at least nine judges should take the decision to exercise the power — only a matter of time before a full bench has to be convened.

The problem is a layered one — though very linear in the most obvious sense.

By virtue of Pakistan being premised on the grandiose notion of constitutional supremacy, there seems to be an imbalance of power between Parliament and the apex court — both, in different breadths, contesting the nature of their relationship with the Constitution. However, in its crudest form, the SC has employed interpretations that widen the scope of the court to such an extent that other state institutions can feel undermined. We are, of course, referring to the use of Article 184(3) — more commonly known as “suo motu action”.

Under these powers, the apex court has intervened not just in monetary and financial issues but also lingered into wider issues of public policy making as well as legislation. Under former chief justice Saqib Nisar, for instance, the SC provided the government with recommendations on how to address the population growth crisis and formed a committee to manage high population growth in Pakistan. In fact, the suo motu was used so liberally during CJP Nisar and Iftikhar Muhammad Chaudhry’s tenures that they have been referred to as “legal gymnastics”.

While this phrase may serve well for comedic purposes, the grassroots reality begs to differ. The term ‘legal gymnastics’ implies that His Lordship had some regard for law and went on to expand its ambits. However, in this case, CJP Nisar embarked on a voyage to fix all social and economic issues faced by the country, ranging from corruption, milk production, hospital and school management and as has been mentioned already, population control.

A balancing tool

Last year, Parliament suggested amending the suo motu practice to make it more consistent and transparent — it unfortunately had the opposite effect. The bill became a bone of contention for many in civil society groups and the legal fraternity because of the content as well as the impact it would have on future cases, especially the ones set in the current political environment.

There is no question that Pakistan, in its current socio-economic context, needs to employ suo motu powers to facilitate access to justice for its citizens. According to the Ministry of Planning and Development, around 55 million Pakistanis live under the poverty line, and it cannot be deemed reasonable for this section of the population to bear legal costs when it comes to a breach of their fundamental rights. Thus, the courts of law cannot just be passive facilitators but need to be active in their duty of preservation of legal recourse for less privileged and marginalised segments of society.

In addition to this, suo motu acts as a balancing tool to keep Parliament in check in its duty to legislate on issues concerning the entire population. In the current context, Pakistan, previously a British colony, hasn’t yet matured into the true sense of a democracy. The reins of the protection of fundamental rights, therefore, cannot be left alone to Parliament, which might create rifts between different sections of society.

At the same time, there is also a need for a counterbalancing for courts to not let them reign freely, and in turn, allow judicial activism to transform into judicial overreach. This practice makes the law inconsistent with no sense of continuity, especially in Pakistan’s case where the court has established that they cannot be a mere slave to precedent. There is a need for a more coherent, viable and consistent practice of suo motu action. However, to make it happen, certain steps need to be taken.

Amendment to Article 184(3)

Firstly, there must be a very restricted suo motu practice at the SC level which only allows for cases pertaining to judicial review of the acts of the National Assembly.

Article 184(3) of the Constitution of Pakistan confers powers of original jurisdiction on the apex court. The article must be amended in a way that it confers powers of original jurisdiction to the SC, albeit, only in matters pertaining to the National Assembly, and in any subsequent legislation done by Parliament. This would give the SC the right to adjudicate in legislative matters, thus, confirming the powers of judicial review. Under this new article, the SC can either take up matters suo motu or take writs filed by petitioners.

Additionally, Article 184(3) needs to be amended so that it is only applicable for use in public interest litigation as was the intention of the framers of the Constitution. However, taking inspiration from the Bangladeshi constitution, another clause must be added to the article which adds the requirement of an aggrieved party. This would make Article 184(3) have three qualifiers — the matter being of public interest, must involve a breach of fundamental rights as enshrined in Chapter II of the Constitution of Pakistan and there must be an aggrieved party.

Moreover, the suo motu powers must be vested in the higher courts of the country as is done in the Indian context under Articles 26 and 32 of the Indian Constitution. Article 199 of the Constitution of Pakistan should also be amended so that it gives the higher courts the right to assume original jurisdiction and take up matters suo motu. The article, in addition to the remedies that it can administer, must only have one qualifier: the top three judges of the court must come together to decide whether they can take up a case suo motu.

Since suo motu concerns the “thought of the court”, one judge cannot constitute that thought and therefore, the three judges requirement would make the process more representative. It would also act as an additional check on the powers of the court as one judge is not acting on his sole volition. The judges would also be allowed to constitute benches to hear these cases, of which, they can also be a part.

Taking inspiration from the Indian higher courts, there should not be any other qualifiers for the court to take up cases on its own cognisance. This is essential to broaden the powers conferred under suo motu action as the entire premise of such a practice is to guarantee access to justice. It is not feasible for the court to be expected to limit its powers by adding qualifiers that might restrain it, thus, stopping it from doing what is needed.

True spirit of democracy

The recent amendment to the practices and procedures of the Supreme Court gives the right to appeal which makes the entire process counterintuitive as well as counterproductive. Since there aren’t any qualifiers other than that the case must be taken up by the top three judges, at the high court level, it is possible to expect that the court may abuse and misuse its powers. To deal with such an impending problem, the right of appeal would be granted for suo motu decisions.

However, the high court would not be allowed to hear appeal petitions. In case of a suo motu appeal, the SC would hear these cases. Thus, the apex court would have appellate jurisdiction in such cases pertaining to the suo motu action. This process would streamline the suo motu powers conferred under the Pakistani Constitution. Similarly, it would also make the Supreme Court adjudicate on points of law rather than points of fact.

It is important to note that such streamlining would free the court from many of the issues that it currently faces. Firstly, devolving the SC’s powers of suo motu frees the court from necessarily entertaining more cases at the cost of the previous cases. It is reported that the backlog of cases at the SC is increasing at a rate of 18 per cent every year. The number of pending cases has doubled in the last 10 years. Thus, the court can’t be reasonably expected to entertain further cases, especially when lower courts — high courts — can assist in taking up cases.

Secondly, as the proposal still confers the powers of suo motu for judicial review, the apex court would still have the capacity to assume original jurisdiction. It would further continue to act as an important institution to hold the Parliament in check. Thirdly, by granting the SC appellate jurisdiction in suo motu cases that are being heard by the high courts, the top court continues to be relevant as the highest court of law of the land. Similarly, it also acts as a check and balance mechanism for the high courts.

To put it precisely, if suo motu is practised within metrics that are reasonably guarded, there is no trade-off between rights and democracy. In fact, it may add to the beauty of it. If such recommendations are implemented, it could, in the true spirit of democracy, clear the space for the courts to act in an efficient, fair and transparent manner while maintaining the sanctity of important democratic institutions as enshrined in the Constitution of Pakistan.