Judicial Activism And Misuse Of Suo Motu Powers

Judicial Activism And Misuse Of Suo Motu Powers
Judicial activism in Pakistan has been marked by frequent interventions by the judiciary in matters of governance, politics and public policy. Over the past decade, the judiciary, particularly the Supreme Court, has taken upon itself to scrutinise and adjudicate matters that were previously deemed to be beyond its jurisdiction. While judicial activism can be an effective means of ensuring accountability and enforcing the rule of law, it has also led to criticism and controversy in this important pillar of the Pakistani state.

One of the primary drivers of judicial activism in Pakistan has been the poor performance of the executive and legislative branches. In the absence of effective governance and rule of law, the judiciary has increasingly stepped in to fill the void. This is particularly true in cases of corruption, where the efficacy of political institutions has been called into question. The judiciary has played an important role in holding corrupt officials accountable and ensuring that the law is enforced.

Judicial 'overreach'

However, critics of judicial activism have argued that the judiciary has overstepped its boundaries in its zeal to enforce the law. They point to how the judiciary has sometimes taken over functions that belong to the executive and legislative branches, and in doing so, has undermined democratic principles. For example, in 2012, the Supreme Court of Pakistan disqualified then-Prime Minister Yousuf Raza Gilani for contempt of court, on the grounds that he had refused to reopen corruption cases against then-President Asif Ali Zardari. Some have argued that the judiciary had no right to disqualify a democratically elected leader in this manner, as it usurped the rights of the Parliament and the public to choose their own representative.

Pakistan's judiciary has for long played a role in shaping public policy. In 2009, the Supreme Court of Pakistan intervened in the matter of missing persons, and ordered the government to produce individuals who had been held in secret detention by the security agencies. This intervention was hailed by human rights activists as a positive development, as it drew attention to the issue of enforced disappearances. However, others have criticised the judiciary for its role in policy-making, arguing that this is the job of elected officials, and that the judiciary should not be taking over this function.

Another issue with judicial activism in Pakistan is the uneven application of the law. While there have been instances where the judiciary has taken strong action against powerful individuals, such as disqualifying Nawaz Sharif from the Prime Minister’s Office on corruption charges in 2017, there have also been cases where the judiciary has shown a bias towards certain individuals or groups especially former premier and PTI Chairman Imran Khan who enjoys the ‘soft corner’ of the Superior Courts of the country including Lahore High Court, Islamabad High Court and Supreme Court of Pakistan and he always manages to get a relief from them even if some of the judges have to go an extra mile.

Moreover, judicial activism has also led to concerns about the politicisation of the judiciary. While the judiciary is meant to be impartial and independent, there have been instances where it has been accused of being influenced by political interests.

In defense of judicial activism

Despite these criticisms, there are those who argue that judicial activism is an important means of safeguarding democracy and the rule of law in Pakistan. They argue that, in the absence of checks and balances on the powers of elected officials, the judiciary may be the last line of defense against abuses of power. Moreover, they argue that the judiciary has a duty to ensure that the Constitution is upheld, and that the rights of individuals are protected.

To address the concerns around judicial activism, some have suggested that the judiciary should exercise restraint in its interventions, and allow other democratic institutions to function as they should. This would mean that the judiciary would limit its interventions to cases where the state is failing to enforce the rule of law, and where it is necessary to protect the rights of individuals. Others have suggested that there should be a greater separation of powers between the judiciary, executive and legislative branches, with each branch respecting the role and responsibilities of the others.

Judicial activism has become a defining feature of Pakistan’s legal system in recent years. While it has played an important role in holding state institutions accountable and promoting the rule of law, there are concerns about its impact on democracy and the unequal application of the law. In order for judicial activism to be a positive force in Pakistani society, it needs to be balanced with respect for the authority of other branches of government, a commitment to impartiality, and a dedication to upholding the rights of all individuals, regardless of their background or political persuasion.

Suo motu jurisdiction

The suo motu powers vested in the judiciary of Pakistan have been a subject of scrutiny over the years. While the powers are meant to help the judiciary address critical issues that may otherwise go unnoticed, their misuse has become a matter of concern. This essay aims to analyze the misuse of suo motu powers in Pakistan, its implications, and the need for reforms to mitigate these issues.

Suo motu refers to the Latin term, meaning "on its own motion." In the context of Pakistan's judiciary, it refers to the powers vested in the Chief Justice, the High Courts, and the Supreme Court to take cognisance of any matter based on their own discretion. The powers are significant, for they allow the judiciary to address pressing issues that may otherwise go unnoticed. However, the powers' misuse has become a matter of concern, with some arguing that they are being used to advance personal or political agendas.

The Pakistani judiciary's frequent use of suo motu powers has invited criticism from various quarters. Critics have argued that the judiciary is encroaching on the domain of the executive and the legislative branches of government. For example, when the judiciary takes notice of a public issue, such as the availability of clean water or the state of healthcare facilities, it overrides the responsibilities of the executive branch. Similarly, when a court takes notice of a legislative issue, such as the composition of the Election Commission or the date of elections, it interferes with the legislature's domain.

Another concern raised against the use of suo motu powers is the arbitrary nature of these interventions. The judiciary's power to intervene in a matter based on its own discretion sometimes becomes an exercise of arbitrary authority. The intervention may not always guarantee a fair and unbiased decision. Besides, the intervention may be selective or based on personal preferences, which may not adequately address the question at hand.

The impact of suo motu cases in Pakistan

The alleged misuse of suo motu powers is not limited to the judiciary's conduct; it also affects the perception of justice in society. The frequent use of these powers often creates a perception of judicial activism that goes beyond the judiciary's primary responsibility of dispute resolution. People may perceive judicial activism as a substitution for the executive and legislative branches of government, which undermines their legitimacy. Such perceptions may create an impression that the judiciary is no longer an independent arbiter, but a participant in politics.

The subsequent impact of misusing suo motu powers on the separation of powers doctrine in Pakistan is concerning. The separation of powers is a core tenet of modern democratic governance, and its violation can lead to autocratic authoritarianism. The misapplication of suo motu powers, as concerns the separation of powers doctrine, often blurs the lines between the judiciary's authority and that of the executive or the legislative branches. This blurring of lines can lead to constitutional crises, where democracy and the rule of law are seriously undermined.


Reforming the judiciary

To address the misuse of suo motu powers, several reforms are necessary. Firstly, there is a need to establish clear guidelines on when and how the judiciary should exercise suo motu powers. Such guidelines can help reduce the arbitrary nature of the interventions and minimize the perception of judicial activism. These guidelines can be developed through consultations between the judiciary, the legal community, and other relevant stakeholders.

Secondly, there is a need for greater accountability of the judiciary to prevent the misuse of suo motu powers. Judicial accountability should be tied with transparency in the exercise of these powers. For instance, the judiciary should publish periodic reports on the cases it has taken suo motu action, the reasons behind the intervention, and the final outcome. Such publications can help demonstrate that the judiciary is not abusing its power and can enable public scrutiny of the process to ensure that it is free of bias or favor.

Thirdly, there is a need to reform the judicial appointment process. The appointment process must be transparent and free of political influence to ensure that judicial officers are appointed based on their competence and integrity. The appointment process should also ensure that the judiciary's appointment process is representative of the country's diverse population through proportional representation.

The misuse of suo motu powers by the judiciary in Pakistan has been a matter of concern. The arbitrary insertion and perceived judicial activism undermine the judiciary's role as a neutral arbiter and undermine democracy's basic principles. Nonetheless, reforms in the form of developing clear guidelines for the judicial use of suo motu powers, greater judicial accountability, and judicial appointment process reform can ensure that these powers are exercised in the public interest and strengthen the judiciary's independence.

The writer is a senior correspondent at The Friday Times with a focus on politics, economy and militancy. He also hosts the Hassan Naqvi Show on Naya Daur.