Similarly, a pot of biryani, a piquant culinary marvel, is an intricate play of delicate basmati, succulent meat, and an orchestra of spices. Each ingredient, with its unique flavour and aroma, contributes to the grand symphony that is the dish. The beauty of biryani lies not just in the combination of ingredients but in the balance and restraint of the chef. One spice overpowering the others can disrupt the harmony, turning an exquisite delicacy into a discordant mishmash.
Such is the tale of Pakistan's judicial activism and its rather infamous instrument - the suo motu powers. At their best, they bring forth a unique flavour of justice, often neglected, yet essential. This uniqueness of the seemingly autonomous Pakistani judicial broth, however, doubles down as both tantalizing and occasionally overpowering. When misused or overused, these powers risk subverting the very constitution they vow to uphold. They can meander off their righteous path, becoming more like a torrential flood, less like a nourishing river; more like an over-spiced biryani, continuously distancing itself from the harmonious medley of flavours it should always endeavour to be.
Article 184(3) of the constitution serves as the backbone of this legal mechanism. An extraordinary (in every sense of the word truly) instrument, it gives the judiciary the authority to initiate proceedings of its own accord. Like the might of the River Indus, this power can be a life-giving force, revitalizing the legal landscape. However, when it swells beyond its banks, the same power can wreak havoc, much like an unfettered river eroding its very banks.
The chronicles of suo motu in Pakistan are intrinsically linked with the tenure of Justice Iftikhar Muhammad Chaudhry and then expounded upon rather ‘judiciously’ by Justice Saqib Nisar. Under Chaudhry, suo motu cases experienced an unprecedented surge, soaring from a handful to a deluge of over a hundred annually. Nisar, too, took this mantle forward, using suo motu as a judicial wand, weaving a spectrum of interventions spanning apparent public health to his widely publicised rally calls for environmental protection and sustenance.
Under the guardianship of Justice Chaudhry, the suo motu instrument took on a life of its own. His decision in the case of the 'Steel Mills Corporation' (Suo Motu case No.9 of 2006) halted the privatisation of Pakistan Steel Mills, etching a significant milestone in the annals of judicial activism.
But it wasn't all smooth sailing. In 'Motu case No.13 of 2007', a suo motu notice regarding the Lal Masjid operation, Justice Chaudhry faced the wrath of critics who questioned the judiciary's interference in the state’s administrative matters. Was it the guardian of justice safeguarding the sanctity of a more overarching rule of law, or had it become an overzealous player, straying onto the turf of the executive?
Justice Nisar’s tenure too saw an influx of suo motu interventions. His decision in the 'Human Rights Case No.17582-P of 2018', concerning the alarming water scarcity in Pakistan, made waves. However, it provoked concerns over judicial overreach, blurring the demarcated boundaries of the judiciary and the executive. Was the judiciary assuming the role of a watchful parent, or was it infringing upon the rightful jurisdiction of other branches? The aftermath of this ill-famed case - the ‘Chief Justice Dam Fund’ was widely criticised and exposed the hollow structure of judicial activism and the abhorrent lack of any true follow-up repercussions which saw $40 million being donated by Pakistanis all over the globe and a further $63 million being spent by the government on its advertisement campaign seemingly disappear into thin air.
Moreover, the controversial 'Human Rights Case No. 25701 of 2018', initiated by Justice Nisar, pertained to the pricing of petroleum products and the constitution of the Drug Regulatory Authority. Critics bemoaned the court's involvement in administrative decisions, further fuelling the debate around the overstepping of constitutional bounds.
However arguably the most significantly ominous shadow cast by these powers is that of overt politicization – one that can also be argued as a contributing tool to outright political engineering. This surfaced starkly in 2017, with the dismissal of Prime Minister Nawaz Sharif. The Supreme Court, invoking Article 184(3), unseated the PML-N supremo based on the controversial Article 62(1)(f) of the constitution. This provision, ambiguously mandating the 'honesty' and 'truthfulness' of elected representatives, is deeply fraught and mired in ambiguity and harkens back to Zia’s dictatorship with its very roots being firmly planted to paint a vivid picture of the shrewd, conniving, ‘corrupt’ politician.
Both Articles 62 and 63 have historically served instruments of political manipulation, cleverly utilized to unseat democratically elected leaders, casting a blemish on the face of democracy as they have historically continued to serve and do to this very day as flimsy constitutional cover for the whims of the deep state. The dismissal of Sharif, therefore, was not merely a political upheaval; it underscored a structural problem within the very mechanisms of judicial activism and suo motu powers, and as unfortunate as it may be – the very fraternity that stood up to the undemocratic powers at play a decade ago enabled this grave miscarriage of justice and due process.
The very nature of suo motu powers begs a deeper, philosophical examination of their place within a democratic society. The concept of a judiciary acting independently of a formal complaint is not inherently problematic. Indeed, it can provide a significant safety net in situations where the aggrieved party is unable or unwilling to seek redress.
Yet, the same power, unbridled and unmoderated, risks overshadowing the essential principles of natural justice. When the judiciary acts as the complainant, the investigator, the prosecutor, and the adjudicator, the possibility of prejudice or bias creeping in is unnervingly high. The inherently undemocratic nature of this power, when exercised without restraint, risks undermining the very principles it is supposed to uphold.
Furthermore, frequent interventions by the judiciary in the realm of the executive can blur the clearly defined lines of separation of powers. If the judiciary, under the garb of suo motu powers, assumes the role of the executive or the legislature, the delicate balance of powers enshrined in our constitution risks toppling. Judicial activism must tread this tightrope cautiously, being a catalyst for justice without overstepping its constitutional bounds.
In this intricate tapestry of power, justice, and democracy, the suo motu thread adds a unique hue. It holds the potential to paint bold strokes of justice on the canvas of our society, but when used recklessly, it risks turning the painting into a garish splash of colours, eroding the finer details of our democratic values.
Therefore, we must remember that the power of suo motu, much like the spices in our beloved biryani, must be used judiciously – this time in its true sense. Overuse can overpower the dish, masking the nuanced flavours of our constitutional principles. For the beacon of justice should shine not just on the apex of the judiciary, but must reach the deepest corners of our society. It must illuminate every nook and cranny, leaving no stone unturned in its quest for truth, and above all, it must hold steadfast to the principles of fairness, impartiality, and balance.
At the crossroads of our democratic journey, it is essential that we pause and ponder, learning from the successes and failures of our past, charting a course for a future that embodies the true spirit of justice. The journey may be fraught with challenges, but as the setting sun gives way to the star-studded skies, there lies the promise of a new dawn, guiding us towards a brighter, more equitable tomorrow.