With his retirement only a few months away, Chief Justice (CJ) of Pakistan Saqib Nisar has appointed amicus curie and directed senior law officers to assist in determining limits of suo motu powers of the court under Article 184-(3). A welcome realisation indeed!
Back in April 2014, as member of the bench trying a case of restoration of membership of a lawmaker, Justice Nisar had called for constituting a larger bench for setting parameters of the use of suo moto powers. “The time has come to correct the mistakes made,” he had famously remarked at the time. But nothing came of it.
Last May, however, something unusual happened in our judicial history.
While hearing a case filed in the Peshawar registry – headed by CJ Nisar - Justice Qazi Faez Isa questioned the manner in which a public interest litigation was initiated and asked the advocate general to read out Article 184-(3).
A subsequent note by Justice Qazi Isa revealed that the CJ interrupted before the article was read out. He left his place in the middle of the hearing, stating that the bench would be reconstituted at a later date. When reconstituted, the bench excluded Justice Faez Isam, who termed this act unreasonable and unprecedented.
Justice Isa was of the opinion that before exercising suo moto jurisdiction, the court must be satisfied that doing so was in accordance with the Constitution. A mere nod by a chief justice was not a substitute for a Supreme Court order, Justice Isa noted.
Indeed, determination of the limits of powers as well as how this determination is made is central to administration of justice. When the SC exercises suo moto powers, it becomes a trial court that deprives the litigant access to all other tiers in the judicial system. With there being no provision for an appeal, a litigant is also deprived of a fundamental right of due process guaranteed by Article 10-(A), more so when during the course of hearings, an entirely new and different aspect of the case comes to surface with no bearing on the original issue. In the absence of any regulatory legislation, suo moto notices sometimes appear as favours for some and punishment for others. Unchecked exercise of powers also runs the risk of dragging the court in the domain of other institutions.
Exercise of suo moto powers is necessary for enforcement of fundamental rights as well as to provide space for a measure of judicial activism. However, unrestrained powers results in unrestrained judicial activism and easily degenerate into some hyperactivity in response to headlines and sound bites on television channels.
Suo moto is an awesome power indeed. The greater a power, the greater the need for regulating its exercise. But how does one determine these limits? The issue involves powers of judges. Should the court sit in judgment and regulate the use of its own power? With profound respect, the honourable judges may perhaps not be the best placed to decide. Sitting in judgment over one’s own cause is not the most glorious thing. Even if they decided to curtail their own powers, it will appear more as bounty of the judges, rather than a right of the people.
Past judgments relating to intra-institutional powers have also not been very inspiring. The Constitution was interpreted in ways that seemed to enhance the powers of the judges, instead of the powers of democratic institutions. Consider this: the 18th Amendment introduced Article 175-(A) to formalise a modest role of the parliament in selection of judges through a bi-partisan parliamentary committee (PC). When the Supreme Court seemed unhappy even over this modest interference, the parliament curtailed its role in the appointment of judges through the 19th Amendment.
Even then, the SC, through a mechanism of judicial review of recommendations of the PC, further expanded its own powers, making the PC a toothless body. Subsequently, in deciding a constitutional reference filed by the president, the SC ruled that the prime minister and the president had “no discretion but to forward/appoint the nominees,” of the JC, the proceedings of which were conducted in secrecy.
As a result, during the post-restoration period of 2010-13, the CJ made 126 superior judicial nominations. Out of these, the parliament disagreed with only eight, but even these small disagreements were not entertained by the court.
Similarly, through its July 31, 2009 verdict, the court sacked over 100 judges. Such vast powers of appointing and sacking judges in the hands of judges alone gave rise to cynical idea of a judiciary of the judges, by the judges and for the judges.
Consider the application of the contempt of court law. On April 26, 2012 an elected prime minister of Pakistan, who had ordered the release of deposed lordships of the superior courts immediately upon his election, was convicted of contempt of court and sent home. In another unprecedented move, rulings of the National Assembly speaker were declared to be of no effect. It has also been ruled that accounts of the court will not be produced before the parliament.
Increasingly relying on the contempt law on the one hand and by judicial overreach through suo motu powers on the other, the court has appeared to enhance its own powers at the expense of other state institutions. The issue of limits of suo motu powers is, therefore, best decided in the parliament, not in the court.
With great respect to their lordships, I must mention the nine-point Objectives Resolution, where the independence of judiciary is near the bottom, at serial eight: “The state shall exercise its power and authority through the chosen representatives of the people.”
With equally profound respect, I must say, “Heed parliament! Heed.”
The writer is a former senator
Back in April 2014, as member of the bench trying a case of restoration of membership of a lawmaker, Justice Nisar had called for constituting a larger bench for setting parameters of the use of suo moto powers. “The time has come to correct the mistakes made,” he had famously remarked at the time. But nothing came of it.
Last May, however, something unusual happened in our judicial history.
While hearing a case filed in the Peshawar registry – headed by CJ Nisar - Justice Qazi Faez Isa questioned the manner in which a public interest litigation was initiated and asked the advocate general to read out Article 184-(3).
A subsequent note by Justice Qazi Isa revealed that the CJ interrupted before the article was read out. He left his place in the middle of the hearing, stating that the bench would be reconstituted at a later date. When reconstituted, the bench excluded Justice Faez Isam, who termed this act unreasonable and unprecedented.
Justice Isa was of the opinion that before exercising suo moto jurisdiction, the court must be satisfied that doing so was in accordance with the Constitution. A mere nod by a chief justice was not a substitute for a Supreme Court order, Justice Isa noted.
When the SC exercises suo moto powers, it becomes a trial court that deprives the litigant access to all other tiers in the judicial system. With there being no provision for an appeal, a litigant is also deprived of a fundamental right of due process guaranteed by Article 10-(A)
Indeed, determination of the limits of powers as well as how this determination is made is central to administration of justice. When the SC exercises suo moto powers, it becomes a trial court that deprives the litigant access to all other tiers in the judicial system. With there being no provision for an appeal, a litigant is also deprived of a fundamental right of due process guaranteed by Article 10-(A), more so when during the course of hearings, an entirely new and different aspect of the case comes to surface with no bearing on the original issue. In the absence of any regulatory legislation, suo moto notices sometimes appear as favours for some and punishment for others. Unchecked exercise of powers also runs the risk of dragging the court in the domain of other institutions.
Exercise of suo moto powers is necessary for enforcement of fundamental rights as well as to provide space for a measure of judicial activism. However, unrestrained powers results in unrestrained judicial activism and easily degenerate into some hyperactivity in response to headlines and sound bites on television channels.
Suo moto is an awesome power indeed. The greater a power, the greater the need for regulating its exercise. But how does one determine these limits? The issue involves powers of judges. Should the court sit in judgment and regulate the use of its own power? With profound respect, the honourable judges may perhaps not be the best placed to decide. Sitting in judgment over one’s own cause is not the most glorious thing. Even if they decided to curtail their own powers, it will appear more as bounty of the judges, rather than a right of the people.
Past judgments relating to intra-institutional powers have also not been very inspiring. The Constitution was interpreted in ways that seemed to enhance the powers of the judges, instead of the powers of democratic institutions. Consider this: the 18th Amendment introduced Article 175-(A) to formalise a modest role of the parliament in selection of judges through a bi-partisan parliamentary committee (PC). When the Supreme Court seemed unhappy even over this modest interference, the parliament curtailed its role in the appointment of judges through the 19th Amendment.
Even then, the SC, through a mechanism of judicial review of recommendations of the PC, further expanded its own powers, making the PC a toothless body. Subsequently, in deciding a constitutional reference filed by the president, the SC ruled that the prime minister and the president had “no discretion but to forward/appoint the nominees,” of the JC, the proceedings of which were conducted in secrecy.
As a result, during the post-restoration period of 2010-13, the CJ made 126 superior judicial nominations. Out of these, the parliament disagreed with only eight, but even these small disagreements were not entertained by the court.
Similarly, through its July 31, 2009 verdict, the court sacked over 100 judges. Such vast powers of appointing and sacking judges in the hands of judges alone gave rise to cynical idea of a judiciary of the judges, by the judges and for the judges.
Consider the application of the contempt of court law. On April 26, 2012 an elected prime minister of Pakistan, who had ordered the release of deposed lordships of the superior courts immediately upon his election, was convicted of contempt of court and sent home. In another unprecedented move, rulings of the National Assembly speaker were declared to be of no effect. It has also been ruled that accounts of the court will not be produced before the parliament.
Increasingly relying on the contempt law on the one hand and by judicial overreach through suo motu powers on the other, the court has appeared to enhance its own powers at the expense of other state institutions. The issue of limits of suo motu powers is, therefore, best decided in the parliament, not in the court.
With great respect to their lordships, I must mention the nine-point Objectives Resolution, where the independence of judiciary is near the bottom, at serial eight: “The state shall exercise its power and authority through the chosen representatives of the people.”
With equally profound respect, I must say, “Heed parliament! Heed.”
The writer is a former senator