Like the Supreme Court, the use of suo motu judicial review by the high courts may reduce grievances of common citizens deprived of justice by various public and private sector dispensations. The use of suo motu power by the Supreme Court is providing relief to thousands and thousands of people deprived of justice by various departments, particularly police. The suo motto jurisdiction of the Supreme Court, which practically and in real terms made alive by the incumbent chief justice, Iftikhar Muhammad Chaudhry, in 2006, is redressing people’s grievances to the maximum extent.
The Supreme Court has taken suo motto notices in thousands of matters right from the police excesses to government’s illegal steps as well as institutional corruption. The use of Supreme Court’s suo motu judicial review has become so familiar that an illiterate man living in any far-flung and backward area of the country knows about it and has expectations of justice from the apex court in case of any grievance.
The Human Rights Cell of the Supreme Court receives hundreds of complaints daily. Majority of these complaints are against the police and other state institutions, like WAPDA, utilities Gas and health institutions. These suo motu notices are taken on individual complaints and news reports. The Supreme Court disposes of dozens of human rights cases of minor nature daily. However, some matters take weeks and months in disposing of due to technical reasons and inordinate delays by the state functionaries.
According to lawyers, although the high courts have also started taking suo motu notices in human rights’ cases, however, they are not up to the mark and that is why people are expecting more. According to Haseeb Muhammad Chaudhry Advocate, if the high courts like the Supreme Court also start taking notices on written complaints and news reports of human rights violations and corruption, the institutional excesses and corruption may reduce giving relief to the people.
He said the use of suo motu judicial review by the superior courts had helped to shed light on issues left untouched by the elected branches, and thus treats the nation’s untreatable diseases.
However, according to Supreme Court Bar Association President Asma Jahangir, without a method to determine when it is proper to use this judicial tool, suo motu could “poison the system” by politicising the court and creating rifts between the branches of government. She said the use of suo motu was an anomaly to the subcontinent, with India and Pakistan having constitutional provisions allowing the court to exercise jurisdiction even when the technical requirements for a case have not been satisfied. According to noted a lawyer Muhammad Akram Sheikh, under Chief Justice Iftikhar Muhammad Chaudhry, the apex court has relied on its constitutional right to take suo motu actions. In Article 184 (3) of Constitution, the apex court is allowed to take suo motu action whenever there is a possible violation of fundamental rights enumerated in the chapters 1 and 2.
Thus, the court has initiated several cases based on news stories that appeared in the print or electronic media or letters sent to the court by common citizens. Though a news story or a letter does not fulfil the legal requirements of filing a plea, the court has been willing to take action.
He said the speedy and public trial of the Rangers who shot and killed Sarfraz Shah on videotape in Karachi was a prime example of the positive use of suo motu by the apex court. He said in the case of missing persons, the court acted to preserve the right of habeas corpus guaranteed by the constitution which states that an individual who is arrested by a state actor must be presented publicly and told the allegations against him.
Former chief justice of Lahore High Court Khawaja Muhammad Sharif defended the use of suo motu by stating that he would take notice of every matter in which the executive was showing slackness.
Noted constitutional experts believe that the use of suo motu is a game-changing feature to the balance of powers between the Parliament, Supreme Court, and the president’s office. However, they say if the practice is overused, it could cause an all out rebellion and refusal by elected officials to enact the decisions of the court. This would be devastating to the credibility of the institution and render it as powerless as during the days of dictatorial rule. In fact, some have argued that the recent spate of judicial activism has led to several instances where the judicial branch and executive were so conflicted that there was no effect of the apex court’s decisions.
“The superior courts may successfully cure many of the nation’s evils only by taking a deliberate approach to addressing injustices in its society through a legal framework that respects the balance of power and can be expanded on by jurists to come,” Justice (r) Fakhruddin G Ebrahim said.
