Judges ‘disagree’ on harnessing suo motu powers

Insteadof regularising the public interest jurisdiction by amending its rules,the Supreme Court of Pakistan has resolved that it will exercise itssuo motu jurisdiction “in accordance with the Constitution”.Suo motuis Latin for “on it’s own motion”. In legal terms, suo motu powersallows the Supreme Court to initiate actions without first requiring acase to be filed.“The issue of the exercise of jurisdiction underArticle 184(3) of the Constitution was discussed threadbare from allpossible angles, and it was affirmed that such jurisdiction will beexercised in accordance with the Constitution,” say the minutes of theFebruary 6 full court meeting.Chief Justice of Pakistan Asif SaeedKhosa had called the full court to consider the amendment in order XXVSupreme Court Rules, relating to the exercise of powers under Article184(3) of the Constitution as proposed by the Supreme Court BarAssociation (SCBA) last year.Former SCBA president Peer KaleemKhursheed had submitted proposed amendments to the Supreme Court rulesto regularise the public interest jurisdiction under Article 184(3).Hesaid that the bar had recommended rules guiding where the Supreme Courtshould exercise public interest jurisdiction and where it should not.Thebar had proposed that the right to appeal should be given againstverdicts rendered under Article 184(3) of the Constitution, Khursheedsaid.Legal experts believe that there is no consensus among theSupreme Court judges to regulate the public interest jurisdiction andgiving right to appeal in suo motu cases through amendment of the apexcourt’s rules.Renowned lawyer Faisal Siddiqi said this proves thedisagreement among judges regarding the parameters and interpretation ofArticle 184(3).“Thus, the only bare minimum agreement among them isthat they will act in accordance with the Constitution, which resolvesnothing as each judge has his own interpretation of the constitutionalprovision of Article 184(3),” he said.Former attorney general IrfanQadir, who has been a strong critic of the suo motu jurisdiction in thepast, said that the full court’s decision was unfortunate.He addedthat the Supreme Court uses suo motu powers to regularise politics byapplying Article 62(1) of the Constitution and maintaining goodgovernance in the country, which is not its domain.“Where it iswritten in the Constitution or the judges’ code of conduct, that theapex court will intervene in governance issues due to executive’sfailure?” he questioned.Qadir also lamented that the courtexercising quo warranto jurisdiction had ousted a number of politicalleaders, judges and civil servants, but there is no check on the court’sauthority.Quo warranto is a legal action that requires a person to show under which authority he or she has acted.Qadirsaid that it is about time the parliament looked into the matter sothat tracheotomy of power could not be violated further.Anotherlawyer, who requested anonymity, said that when the superior judiciaryhas structured discretionary powers of executive authorities, includingthe prime minister, then it must also regulate the chief justice’sunfettered powers of suo motu and constitution of benches.“If thejudiciary does not regularise the public interest jurisdiction, thenparliament might take up the issue, which may become a source of tensionamong institutions,” he pointed outChief Justice Khosa in his firstspeech on January 17 said that either through a full court meeting orthrough a judicial exercise, an effort shall be made to determine andlay down the scope and parameters of the exercise of the originaljurisdiction of this court under Article 184(3).“And, if deemedappropriate, to carve out the scope of an intra-court appeal in suchmatters through an appropriate amendment of the Supreme Court Rules orto suitably amend the provisions relating to review jurisdiction so asto enlarge its scope in such cases,” he said.The chief justice alsosaid that suo motu exercise of the Supreme Court’s jurisdiction underArticle 184(3) of the Constitution shall be exercised very sparingly andonly in respect of larger issues of national importance, where eitherthere is no other adequate or efficacious remedy available, or theavailable constitutional or legal remedies are ineffective or arerendered incapacitated.Senior lawyers believe that there will be achallenge for the chief justice, who is retiring in December, to evolve aconsensus among the Supreme Court judges to regulate suo motu powers byamending the apex court’s rules.Both the leading opposition parties– the Pakistan Muslim League – Nawaz (PML-N) and the Pakistan PeoplesParty (PPP) – faced a tough time due to use of suo motu powers by theapex court, with a number of politicians facing disqualification.TheArticle 225 of the Constitution says that no election dispute can becalled in question except via election petitions, but dozens oflawmakers have been disqualified through the exercise of the quowarranto under Article 184(3).Interestingly, there is no option of filing appeal against the judgment in a suo motu case.ThePPP’s latest manifesto also states that Article 184(3) has been used inways that “did not inspire great confidence in its use by courts inhuman rights issues”.Both the senior-most judges, Justices GulzarAhmad and Sheikh Azmat Saeed, were part of the bench led by former chiefjustice Iftikhar Chaudhry, which heard several public interest matters.JusticeAhmad, who is next in line to become the chief justice and will holdthe post for over two years, has already initiated proceedings of publicinterest litigation for removal of encroachments from Karachi.Likewise,Justice Saeed has authored two rulings, wherein the jurisdiction of quowarranto to examine the qualification of lawmakers under Article62(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.