- In defence of exercising suo motu powers
Jurisdiction under Art 184 (3) of the Constitution and exercising suo motu powers by the Supreme Court is taken exception to by some among politicians and lawyers. The criticism is prompted by vested interests, especially the corrupt amongst the former, who fear accountability for their misdeeds. The top-notch lawyers oppose it, for it deprives them of charging fee from clients, as the appearance of a counsel in suo motu proceedings is not required. They however charge millions, if not more, from the rich and powerful, involved in such cases. And in a debauched political system, the exercise of such jurisdiction is the only redeeming feature to protect national interest. This is the only mechanism to seek redress for wrongs, avoid exploitation and enforce the fundamental rights of poor and vulnerable sections of society. That it curbs the practice of loot and plunder of national wealth is an added benefit to the nation.
Notwithstanding the strong opposition, the exercise of such jurisdiction is a duty cast on the Supreme Court and is firmly grounded in the fundamental law of the land viz the Constitution. Article 184 (3) mandates the Supreme Court to enforce Fundamental Rights in cases/matters involving public interest. The clause is unique in the sense that courts in very few countries in the world are empowered to exercise such power. There exist no equivalent provisions in advanced countries and established democracies. This is so because their systems are developed enough to dispense justice to all, and hold rulers and public functionaries, accountable to the masses.
The Court need to be creative and innovative in handling cases, playing the role of judicial statesmanship through encouraging the legislature to transform legal/constitutional goals into viable legislative/policy options and prodding the executive to enforce/implement the same
Ignored for a long time, the Supreme Court of Pakistan employed Art 184 (3) towards the end of 1980s in dealing with issues of public interest. The application however has not been consistent, as long pauses/gaps intervene in-between. The earlier judgments include the allotment of symbols to, and the necessity of having political parties in parliamentary democracy, abolition of bonded labour system, the prevention of pollution and protection of environment, etc. Again, after hibernation for a decade or so, the provision was invoked in mid-2000, in matters relating to the abuse/misuse of power and corrupt practices by ruling elite for self-enrichment and indulging in nepotism/favouritism. Important suo motu notices include the privatisation of Karachi Steel Mills, declaring PCO/NRO null and void, registering complaint of high treason against the Bonaparte, holding military top brass liable for corrupt practices in the 1990 General Elections, corruption in rental power projects, Hajj scam, regulating organs transplant, protection of places of worship (Churches) of the minority community and formation of JITs to unearth mega corruption scandals against corrupt politicians, otherwise untouchable. The Supreme Court’s recent verdicts for recovery of 460 billion rupees from Bahria Town, swindled in collusion with the Sindh Government and reduction in exorbitant fee, charged by private schools, deserve credit for enforcing fundamental rights and supremacy of law.
It goes to the credit of Founding Fathers of the 1973 Constitution for inserting this clause in the document. It was indeed, a prophetic vision! They visualised the current scenario in the country, when shameless corrupt politicians, appearing before NAB/FIA, are greeted by groups of political cronies and make victory signs. They also envisioned the times, when a Bonaparte would seek the perpetuation of his rule by issuing PCO and NRO, contrary to legal and ethical norms. The clause is therefore of immense utility and benefit to the nation and deprived/disadvantaged and weak/vulnerable sections of society.
The exercise of jurisdiction under Art 184 (3) is of the nature of Public Interest Litigation (PIL). Sanctioned by the Constitution, its exercise cannot be evaded or avoided. Till now, it is largely dependent on the dynamism and activism of the incumbent Chief Justice. There is no escape from scrupulous application of this provision. Avoiding this command, indeed tantamount to deviation from the Constitution.
In the course of time, Art 184 (3) has been interpreted and its scope/ambit considerably enhanced, both in terms of taking up cases as well as adopting trial procedure and granting relief/remedy. It has been held that any person or group (not necessarily aggrieved party) may bring a complaint in any form (formal petition or sending letter/application) and the Court may even take a matter suo motu.
Thus, PIL is a new/novel concept in the field of adjudication, used mostly for checking the abuse/misuse of power, corrupts practices and maintaining rule of law in society. It is the only apparatus for registering the grievances/complaints of the poor, ignorant, weak/vulnerable for seeking relief against abuse, injustice and exploitation. And while conducting proceedings, new/innovative methods/techniques are employed to do away with legal formalities/technicalities and procedural hiccups, so as to grant quick relief. The requirements of having to file a formal petition, paying court fee and engaging a counsel, are dispensed with. Even the principles of locus standi (right to appear), res judicata (matter already judged), and period of limitation, are ignored to render effective and substantial justice. Further, the adversarial system of litigation, currently in vogue, is blended with inquisitorial system to reach a just conclusion. Thus, JITs are formed, reports summoned from government departments and expert committees/commissions constituted to investigate the pending matter. Again, new/unconventional remedies are offered to resolve conflicts/disputes. Similarly, new form of relief/remedies is granted. The traditional remedies like granting stay/injunctive relief and damages may be appropriate in individual cases, but not so in dealing with the menace of abuse, exploitation and resolving collective/communal problems. The Court therefore issues directions for positive measures/affirmative actions, including change in existing law/policy and making new law/policy to ensure compliance with the dictate of the Constitution.
Proceedings in PIL are different from ordinary trials. They are not necessarily between individuals/parties, hence not adversarial in character. They are purpose-oriented and goal-focused to address the communal issues and prevent the abuse of power, corrupt practices and exploitation of the poor, vulnerable and marginalised sections of society. The purpose is to realise the goals/objectives of the Constitution and make socio-economic and political justice available to all, without distinction/discrimination on any basis whatsoever. Such being the dictate of the Constitution, all the state organs (legislature, executive and judiciary) can join hands and work in unison for realising the common goals/objectives of the Constitution.
The exercise of suo motu powers, currently at the discretion of the Chief Justice, should also be regulated. It requires amendments in the Supreme Court Rules 1980, especially Order XXV thereof, which is sketchy, and need to be suitably amended to regularise the Court’s jurisdiction. Petitions/complaints, filed or taken suo motu, can be referred for scrutiny and completion of documents to the Registrar. The type/category of cases to be entertained may be determined: only persons aggrieved or having sufficient interest in the matter or genuine public-spirited individuals, acting pro bono, may file cases/complaints. Petitions filed by persons motivated by personal gain/profit, political motivations or oblique consideration should be rejected.
In conclusion, a word of caution! The Court needs to be careful/vigilant so as to prevent the abuse of judicial process by vested interests or transcend the constitutional limits, fixed under the scheme of Separation of Powers. The proceedings should not be used for personal gains or settling scores or oblique purposes. Any such abuse, apart from violating the Constitution, will be destructive for the scheme of PIL. The Court need to be creative and innovative in handling cases, playing the role of judicial statesmanship through encouraging the legislature to transform legal/constitutional goals into viable legislative/policy options and prodding the executive to enforce/implement the same. This will enable the judiciary to acquire credibility and legitimacy for its role/functions.
The author practices law at Islamabad and served as Registrar, Supreme Court of Pakistan, Secretary, Law & Justice Commission and Director General, Federal Judicial Academy.
