The Supreme Court hearing last week, in the first ever suo moto notice taken by the present chief justice, has revived once again the debate on judicial activism and the use of suo moto powers by the apex court. The top court not only set aside the Punjab government’s order to ban interprovincial movement, it also verbally ordered removal of Special Assistant on Health to the Prime Minister Dr Zafar Mirza. Mercifully though, the removal order was not put in writing on pleadings of the attorney general.
This is not the first time the manner of use of suo moto jurisdiction by the apex court has created a stir.
In 2013, the then CJP Iftikhar Chaudhry on a suo moto notice cancelled a commercial contract with an international consortium for mining rights in Balochistan on grounds of corruption. The consortium protested and took its case to the International Centre for Settlement of Investment Disputes (ICSID) against the government of Pakistan. After lengthy hearings, Pakistan was fined $5.9 billion last year, almost equal to the three-year standby facility that had just been concluded with the IMF.
In yet another case of taking suo moto notice of a news report, the court declared all rental power projects (RPPs) illegal. A Turkish company Karkey’s power project was also cancelled. An international firm hired to trace corruption reportedly found no proof. The government requested for permission for an out-of-court settlement. The court refused. Karkey also agitated the matter before the international body and Pakistan was fined $900 million.
Suo moto notices have also been taken in cases like recovery of two bottles of wine, regulating sugar prices and investigating electricity bills of a farmhouse in Islamabad to name only a few, demonstrating that there is virtually no criterion to determine when and how such notice have to be taken.
Some honourable judges while being on the bench have voiced concern over how the suo moto powers were being exercised. But once elevated to the position of the chief, however, their enthusiasm for reform seemed to wane.
In April 2014, then serving as a judge, Saqib Nisar called for setting parameters of the use of suo moto powers to “correct the mistakes made.” But when he himself became the CJ, his stance changed.
In a case before a bench headed by him, another judge - Justice Qazi Faez Isa - questioned the manner in which suo moto notices had been taken. Upset by this, Nisar left the bench abruptly and later declared to reconstitute the bench. When it was reconstituted, the bench excluded Justice Isa.
Removing a member from the bench, without the member withdrawing himself, militates against the independence of the judge and shakes the foundations of a free and impartial justice system. But there is no provision in the rules to forbid such arbitrary and abrupt removal of judges from the bench.
There is another problem that needs to be addressed: when the apex court directly takes notice of a matter, it becomes a trial court itself. It extinguishes the defendants’ right to appeal. This is against the principle of fair trial incorporated in Article 10-A in the 18th Amendment.
When the issues involved are of specialised nature, which the courts are not expected to handle - as in case of Karkey power plant and the mining contract - the implications of judicial overreach are far more serious. Questions about how the courts should proceed in suo moto cases in such complex technical matters also have to be answered.
By interpreting Article 184-3 and exercising suo moto jurisdiction, the court has aggressively enhanced its own powers. Such aggressive enhancement undermines other democratic institutions of the state. Constitution must be interpreted in ways that enhances powers of all democratic institutions, not merely that of the Supreme Court.
In the absence of formal checks, raiding of schools and hospitals will continue to be justified as an important function of the chief justice as Saqib Nisar did. So will undertaking to build a dam and participating in fundraising dinners in foreign lands with political party workers in toe be also justified. It encourages a judge to see himself as a village elder, an embodiment of wisdom and justice, more than a judge - a Baba Rehmat, as Saqib Nisar called himself.
Power by its very nature is encroaching. The more one has it, the more one craves for it. Like most mortals, judges also are not immune from this human failing.
Addressing human failings require firm laws and regulations. It has not been done yet in case of powers assumed by judges under suo moto jurisdiction. If not regulated, the danger of a military autocracy changing into judicial autocracy will always lurk.
Barrister Aitzaz warned: crises befall nations whose institutions wield enormous powers without any corresponding responsibility. It is incumbent that all state institutions work in their constitutionally-defined parameters particularly those who determine the limit of those parameters, he said
The use of suo moto notices impinge on the domain of the executive and the parliament. Taking judicial activism too far and exercising absolute powers with no responsibility are issues that must be debated in the interest of putting the ship of the state on an even keel.
Interestingly, the apex court did not take suo moto notices for a long time even after the 1973 Constitution that provided for Article 184-3. Eminent jurists have pointed out that even in the Supreme Court Rules framed in 1980 describing in detail the various jurisdictions of the court, suo moto was not mentioned at all. The first example of the Supreme Court acting on its own is found in early nineties, they point out, saying that it was an innovation by the court designed to enable it to intervene directly when fundamental rights of citizens were under threat of being impinged.
Finally, who should set the parameters of regulations? The parliament or the court itself?
Regulating suo moto powers is an issue that involves the power of judges. It would be wise, therefore, that the court alone did not sit in judgment on its own powers. The parliament has to play key role in deciding the issue.
The writer is a former senator
This is not the first time the manner of use of suo moto jurisdiction by the apex court has created a stir.
In 2013, the then CJP Iftikhar Chaudhry on a suo moto notice cancelled a commercial contract with an international consortium for mining rights in Balochistan on grounds of corruption. The consortium protested and took its case to the International Centre for Settlement of Investment Disputes (ICSID) against the government of Pakistan. After lengthy hearings, Pakistan was fined $5.9 billion last year, almost equal to the three-year standby facility that had just been concluded with the IMF.
In yet another case of taking suo moto notice of a news report, the court declared all rental power projects (RPPs) illegal. A Turkish company Karkey’s power project was also cancelled. An international firm hired to trace corruption reportedly found no proof. The government requested for permission for an out-of-court settlement. The court refused. Karkey also agitated the matter before the international body and Pakistan was fined $900 million.
Suo moto notices have also been taken in cases like recovery of two bottles of wine, regulating sugar prices and investigating electricity bills of a farmhouse in Islamabad to name only a few, demonstrating that there is virtually no criterion to determine when and how such notice have to be taken.
In the absence of formal checks, raiding of schools and hospitals will continue to be justified as an important function of the chief justice
Some honourable judges while being on the bench have voiced concern over how the suo moto powers were being exercised. But once elevated to the position of the chief, however, their enthusiasm for reform seemed to wane.
In April 2014, then serving as a judge, Saqib Nisar called for setting parameters of the use of suo moto powers to “correct the mistakes made.” But when he himself became the CJ, his stance changed.
In a case before a bench headed by him, another judge - Justice Qazi Faez Isa - questioned the manner in which suo moto notices had been taken. Upset by this, Nisar left the bench abruptly and later declared to reconstitute the bench. When it was reconstituted, the bench excluded Justice Isa.
Removing a member from the bench, without the member withdrawing himself, militates against the independence of the judge and shakes the foundations of a free and impartial justice system. But there is no provision in the rules to forbid such arbitrary and abrupt removal of judges from the bench.
There is another problem that needs to be addressed: when the apex court directly takes notice of a matter, it becomes a trial court itself. It extinguishes the defendants’ right to appeal. This is against the principle of fair trial incorporated in Article 10-A in the 18th Amendment.
When the issues involved are of specialised nature, which the courts are not expected to handle - as in case of Karkey power plant and the mining contract - the implications of judicial overreach are far more serious. Questions about how the courts should proceed in suo moto cases in such complex technical matters also have to be answered.
By interpreting Article 184-3 and exercising suo moto jurisdiction, the court has aggressively enhanced its own powers. Such aggressive enhancement undermines other democratic institutions of the state. Constitution must be interpreted in ways that enhances powers of all democratic institutions, not merely that of the Supreme Court.
In the absence of formal checks, raiding of schools and hospitals will continue to be justified as an important function of the chief justice as Saqib Nisar did. So will undertaking to build a dam and participating in fundraising dinners in foreign lands with political party workers in toe be also justified. It encourages a judge to see himself as a village elder, an embodiment of wisdom and justice, more than a judge - a Baba Rehmat, as Saqib Nisar called himself.
Power by its very nature is encroaching. The more one has it, the more one craves for it. Like most mortals, judges also are not immune from this human failing.
Addressing human failings require firm laws and regulations. It has not been done yet in case of powers assumed by judges under suo moto jurisdiction. If not regulated, the danger of a military autocracy changing into judicial autocracy will always lurk.
Barrister Aitzaz warned: crises befall nations whose institutions wield enormous powers without any corresponding responsibility. It is incumbent that all state institutions work in their constitutionally-defined parameters particularly those who determine the limit of those parameters, he said
The use of suo moto notices impinge on the domain of the executive and the parliament. Taking judicial activism too far and exercising absolute powers with no responsibility are issues that must be debated in the interest of putting the ship of the state on an even keel.
Interestingly, the apex court did not take suo moto notices for a long time even after the 1973 Constitution that provided for Article 184-3. Eminent jurists have pointed out that even in the Supreme Court Rules framed in 1980 describing in detail the various jurisdictions of the court, suo moto was not mentioned at all. The first example of the Supreme Court acting on its own is found in early nineties, they point out, saying that it was an innovation by the court designed to enable it to intervene directly when fundamental rights of citizens were under threat of being impinged.
Finally, who should set the parameters of regulations? The parliament or the court itself?
Regulating suo moto powers is an issue that involves the power of judges. It would be wise, therefore, that the court alone did not sit in judgment on its own powers. The parliament has to play key role in deciding the issue.
The writer is a former senator