Time To Regulate Supreme Court's Suo Motu Powers

Time To Regulate Supreme Court's Suo Motu Powers
In the recent past, Pakistan has witnessed the assumption of power by the Supreme Court of Pakistan under Article 184(3) of the Constitution as suo motu jurisdiction. It is a self-starting exercise of judicial power.

There has been an unrestrained exercise of suo motu powers by several Supreme Court judges covering almost all spheres of life, including health, law and order, international agreements and education.

Judicial review is a constitutionally mandated mechanism whereby the political branches of government i.e. executive and legislature, are checked and kept within the bounds prescribed by the Constitution and the law. Importantly, while exercising power of judicial review, the judiciary cannot ignore its limits.

Exercise of suo motu power by the Supreme Court vis-à-vis well settled limits to judicial review requires consideration. As the judicial arm of the government, courts cannot act on their own. Courts exercise power of judicial review only when the constitutionality, legality or validity of any action, whether legislative, executive or administrative, and even judicial, is challenged before them in a proceeding by and between two or more parties.  The existence of a dispute between two or more parties is thus sine qua non (necessary) for exercising judicial power.

The exercise of suo motu power by the honourable Supreme Court is inconsistent with the most central concept of the separation of powers. The courts have a limited role in a democratic society, prescribed by either express clauses of the Constitution or the provisions of principal laws, so that the judiciary may not exceed its limited jurisdiction and enter into the domain of the executive and legislature.

Overstepping of a role by one organ of government into that of another may give rise to arbitrariness, known as usurpation of authority. In such an event, it becomes the constitutional obligation of every organ of government to initiate coordinated efforts to dispel the impression of arbitrariness.

There are many possible solutions. One suggestion is to repeal Article 184(3) of the Constitution through a constitutional amendment so that fundamental rights are adequately and efficaciously guaranteed and protectable under Article 199 of the Constitution and Article 8 thereof.

By exercising suo motu powers, the honourable Supreme Court becomes the court of first instance, as well as the final court, meaning thereby, no appeal lies from its orders or judgments. Under the Constitution, it is the Supreme Court which is the final arbiter. This stark aspect contradicts the fundamental right to a fair trial guaranteed under Article 10-A of the Constitution.  Needless to say, the Supreme Court is also a guardian of the Constitution and fundamental rights. The Constitution is the most sacred national document and the Supreme Court is to guard it against all odds, and against any unholy intrusion.

Another way forward would be for Parliament to define and clarify the contours of power under Article 184 (3) of the Constitution. Namely, first, it is to be exercised only in extra-ordinary compelling circumstances; secondly, there is a question of public importance for the enforcement of fundamental rights; and thirdly, that the powers exercisable under Article 184 (3) of the Constitution as suo motu are subject to the same restrictions to which the powers under Article 199 of the Constitution are subject, i.e. locus standi, only an aggrieved person has title to ask for extra-ordinary constitutional relief.

Yet another more appropriate and feasible solution is for the Supreme Court itself to define the scope of power under Article 184(3) of the Constitution through two ways. First, by exercising its rule-making power under Article 191 of the Constitution by inserting a separate Chapter in the Supreme Court Rules 1980 to include therein such conditions.  Secondly, it may hold judicially that the exercise of power under Article 184(3) is the power of Supreme Court and not that of an individual Chief Justice or Judge of the Supreme Court. In Rules as also in its judicial pronouncement, it may prescribe such contours for exercise of this power as it deems constitutionally most suitable. A textual reading of Article 184(3) of the Constitution plainly shows it to be the power of Supreme Court and not of an individual honourable Judge.

A final suggestion is that the Supreme Court may also constitute a primary hearing bench and empower it with the function to determine whether a matter meets the sin qua non for assumption of jurisdiction under Article 184(3) of the Constitution, or suo motu exercise of powers i.e. there is a question of public importance for the enforcement of fundamental rights, existence of extraordinarily compelling circumstances and question of locus standi. In the event the bench so constituted answers the above questions in the affirmative, only then may the Supreme Court assume suo motu jurisdiction.

Existence of judicial power and its exercise for enforcement of fundamental rights vis-à-vis sustainability of the state have the same nexus as that of the soul with the body. For every judicial power, there is a prescribed uniform mechanism as a general rule. Legislature and judiciary both possess ample powers to prescribe a uniform mechanism for exercise of suo motu power, as well.