Balancing suo motu’s scope with its application
Former CJ Iftikhar Chaudhry was frequently criticized for over-stretching the apex court’s powers vis a vis Article 184(3). The Supreme Court which had till then mostly acted as the appellate forum of the provincial high courts became under him a court which was open to all those who could send in a petition or get a journalist to report their story. In the name of enforcing fundamental rights, the Iftikhar Chaudhary Court sometime ventured into areas beyond its comprehension and jurisdiction. The court took upon itself to check sugar and petroleum prices, corruption, appointments and transfers of government officials and shady contracts that were finalised after alleged kickbacks. Cartel owners, investors and prime ministers were dragged to the courts. A lot of the apex court’s precious time was consumed by cases involving the government. The cases kept the country on tenterhooks and sent two elected prime ministers home. The court had little time to improve the working of the lower courts or make justice cheaper and timely. The court’s selection of cases for hearing was arbitrary as equally, if not more, important cases were kept on the back burner for years.
The process of re-evaluating the suo motu powers is about to begin. Speaking on the eve of the Supreme Court’s full court reference in honour of former Chief Justice Chaudhry , Chief Justice Tasadduq Hussain Jillani had stressed the need to determine the limits and contours of the apex court’s jurisdiction under Article 184(3). This was needed, he said, to discourage frivolous petitions and prevent the misuse of jurisdiction by vested interests. Earlier this month the Supreme Court overturned an interim order by a three-member bench presided over by the then CJ Iftikhar Chaudhry. During the hearing one of the judges observed that time had come to correct the mistakes made while taking suo motu notices.
Meanwhile, national judicial policy making committee has allowed the posting on deputation of judicial officers in the executive in view of the difficulties being faced by the law ministry and law departments. The posting was discontinued in 2009 and all judges working in the executive were repatriated to their high courts. A newspaper report tells of top judiciary mulling to bring back judges sacked in 2009.
While excesses under the former CJ need to be rectified, there must not be any compromise on the positive things of the period, the foremost being the independence of judiciary, its steadfast support for democracy and concern for those made to suffer on account of negligence or misuse of authority by the executive. Powers under the 184(3) might have been misused by an over enthusiastic former CJ, but suo motu action was also helpful in undoing gross injustice and violation of basic human rights. The baby must not be thrown out with the bath water.
