of regularising the public interest jurisdiction by amending its rules,
the Supreme Court of Pakistan has resolved that it will exercise its
suo motu jurisdiction “in accordance with the Constitution”.
Suo motu is Latin for “on it’s own motion”. In legal terms, suo motu powers allows the Supreme Court to initiate actions without first requiring a case to be filed.
“The issue of the exercise of jurisdiction under Article 184(3) of the Constitution was discussed threadbare from all possible angles, and it was affirmed that such jurisdiction will be exercised in accordance with the Constitution,” say the minutes of the February 6 full court meeting.
Chief Justice of Pakistan Asif Saeed Khosa had called the full court to consider the amendment in order XXV Supreme Court Rules, relating to the exercise of powers under Article 184(3) of the Constitution as proposed by the Supreme Court Bar Association (SCBA) last year.
Former SCBA president Peer Kaleem Khursheed had submitted proposed amendments to the Supreme Court rules to regularise the public interest jurisdiction under Article 184(3).
He said that the bar had recommended rules guiding where the Supreme Court should exercise public interest jurisdiction and where it should not.
The bar had proposed that the right to appeal should be given against verdicts rendered under Article 184(3) of the Constitution, Khursheed said.
Legal experts believe that there is no consensus among the Supreme Court judges to regulate the public interest jurisdiction and giving right to appeal in suo motu cases through amendment of the apex court’s rules.
Renowned lawyer Faisal Siddiqi said this proves the disagreement among judges regarding the parameters and interpretation of Article 184(3).
“Thus, the only bare minimum agreement among them is that they will act in accordance with the Constitution, which resolves nothing as each judge has his own interpretation of the constitutional provision of Article 184(3),” he said.
Former attorney general Irfan Qadir, who has been a strong critic of the suo motu jurisdiction in the past, said that the full court’s decision was unfortunate.
He added that the Supreme Court uses suo motu powers to regularise politics by applying Article 62(1) of the Constitution and maintaining good governance in the country, which is not its domain.
“Where it is written in the Constitution or the judges’ code of conduct, that the apex court will intervene in governance issues due to executive’s failure?” he questioned.
Qadir also lamented that the court exercising quo warranto jurisdiction had ousted a number of political leaders, judges and civil servants, but there is no check on the court’s authority.
Quo warranto is a legal action that requires a person to show under which authority he or she has acted.
Qadir said that it is about time the parliament looked into the matter so that tracheotomy of power could not be violated further.
Another lawyer, who requested anonymity, said that when the superior judiciary has structured discretionary powers of executive authorities, including the prime minister, then it must also regulate the chief justice’s unfettered powers of suo motu and constitution of benches.
“If the judiciary does not regularise the public interest jurisdiction, then parliament might take up the issue, which may become a source of tension among institutions,” he pointed out
Chief Justice Khosa in his first speech on January 17 said that either through a full court meeting or through a judicial exercise, an effort shall be made to determine and lay down the scope and parameters of the exercise of the original jurisdiction of this court under Article 184(3).
“And, if deemed appropriate, to carve out the scope of an intra-court appeal in such matters through an appropriate amendment of the Supreme Court Rules or to suitably amend the provisions relating to review jurisdiction so as to enlarge its scope in such cases,” he said.
The chief justice also said that suo motu exercise of the Supreme Court’s jurisdiction under Article 184(3) of the Constitution shall be exercised very sparingly and only in respect of larger issues of national importance, where either there is no other adequate or efficacious remedy available, or the available constitutional or legal remedies are ineffective or are rendered incapacitated.
Senior lawyers believe that there will be a challenge for the chief justice, who is retiring in December, to evolve a consensus among the Supreme Court judges to regulate suo motu powers by amending the apex court’s rules.
Both the leading opposition parties – the Pakistan Muslim League – Nawaz (PML-N) and the Pakistan Peoples Party (PPP) – faced a tough time due to use of suo motu powers by the apex court, with a number of politicians facing disqualification.
The Article 225 of the Constitution says that no election dispute can be called in question except via election petitions, but dozens of lawmakers have been disqualified through the exercise of the quo warranto under Article 184(3).
Interestingly, there is no option of filing appeal against the judgment in a suo motu case.
The PPP’s latest manifesto also states that Article 184(3) has been used in ways that “did not inspire great confidence in its use by courts in human rights issues”.
Both the senior-most judges, Justices Gulzar Ahmad and Sheikh Azmat Saeed, were part of the bench led by former chief justice Iftikhar Chaudhry, which heard several public interest matters.
Justice Ahmad, who is next in line to become the chief justice and will hold the post for over two years, has already initiated proceedings of public interest litigation for removal of encroachments from Karachi.
Likewise, Justice Saeed has authored two rulings, wherein the jurisdiction of quo warranto to examine the qualification of lawmakers under Article 62(1)(f) of the Constitution has been extended last year.
He also endorsed the formation of a joint investigation team (JIT) to probe the Panama Papers case.
He does not spare executive authorities regarding the enforcement of fundamental rights in the country.
However, Justice Saeed is retiring in August.
After analysing past judgments, it can be said that future chief justices have varying approaches to public interest litigation.
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