The Supreme Court’s approach for enforcement of fundamental rights under Article 184-3 of the Constitution has significantly changed since the elevation of Chief Justice Khosa. Reportedly, he has neither taken a suo motu notice nor entertained any case forwarded by the Supreme Court Human Rights Cell, which is a major policy shift from the era of ex-CJP Mian Saqib Nisar.
CJP Khosa said in his first speech that an effort shall be made – either through a full court meeting or through a judicial exercise – to determine the scope and parameters of the exercise of original SC jurisdiction under Article 184-3. He then convened a full court meeting to consider amendments in Order XXV of the Supreme Court Rules 1980 relating to this jurisdiction. However, it seems the SC judges could not reach a consensus in this regard. In these circumstances, this matter may be taken up on the judicial side.
CJP Asif Saeed Khan Khosa and ex-CJP Mian Saqib Nisar sharply differ in their approach to public interest cases for the enforcement of fundamental rights; both top judges claim to act “in accordance with the Constitution,” but a full bench of the SC (preferably 17 members) may be necessary to provide jurisprudential guidance. It would reduce confusion amongst the legal fraternity settling a longstanding debate on the use of suo motu powers for the enforcement of fundamental rights of public importance.
While maintaining its appreciation for the enforcement of fundamental rights, the SC must also appreciate constitutional separation of powers between the judiciary and the executive
Two questions matter: what is a ‘fundamental right’ (as outlined in the Constitution) and when should such a fundamental rights question be treated as a matter of ‘public importance’? Article 184-3 of the Constitution says that, “without prejudice to the provisions of Article 199 [jurisdiction of High Court to enforce fundamental rights], the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights [outlined in the Constitution itself]…is involved, have the power to make an order of the nature mentioned in the said Article.”
Even a brief reading of this article establishes an SC mandate to enforce fundamental rights outlined in the Constitution. However, how broadly should the rights outlined in the Constitution be interpreted, and ‘to what extent’ should the SC go to enforce these rights on its own initiative, that is, how should we understand the legal meaning of ‘public importance’?
While maintaining its appreciation for the enforcement of fundamental rights, the SC must also appreciate constitutional separation of powers between the judiciary and the executive. It would be helpful if the SC could draw a much clearer legal line between the domain of ‘fundamental rights’ and ‘government policy.’ When, exactly, can an appeal to fundamental rights be invoked in relation to flaws or gaps in government policies? There is a strong perception that Justice Nisar’s vast definition of fundamental rights traded short-term popularity for a long-term constitutional imbalance between institutions. The Constitution provides that the government is responsible for matters of public policy and the SC is responsible for ensuring that, within such policies, our constitutional rights are not violated. In other words, the SC should ensure the enforcement of fundamental rights without interfering in the policymaking powers of the executive.
Article 176 states that the SC comprises the chief justice and judges of the SC. It may be argued that the suo motu powers articulated in Article 184-3 are powers of the SC judges acting in concert and not those of a single chief justice acting alone. A full bench, therefore, may be needed to explain two further questions: who can exercise suo motu powers under Article 184-3, and who could decide upon the admissibility of a ‘public interest’ petition filed before the SC?
The Pakistan Bar Council (PBC) has repeatedly urged the SC to restrain or regulate its suo motu powers, noting that “The SC should suitably amend the Supreme Court Rules (1980) to regulate and structure the parameters of the exercise of suo motu powers, and a special bench of the court should be constituted to hear suo motu cases.” To strengthen the constitutional balance of power in Pakistan, the PBC believes that the top court should exercise its authority under Article 184-3 sparingly in order to “maintain the principle of trichotomy of powers.” There are concerns that, because of the top court’s active use of suo motu powers by ex-CJPs Iftikhar Muhammad Chaudhry and Mian Saqib Nisar, this balance tilted too far in the direction of a politically unaccountable judiciary.
Although CJP Khosa has exercised a visible restraint in his exercise of suo motu powers, it is still a matter of serious debate whether judicial restraint helps to protect fundamental rights in Pakistan. It is time that a full bench of the SC decides the scope of Article 184-3 with reference to matters taken up by the SC for the enforcement of fundamental rights. It would ensure that our chief justices do not define the scope of 184-3 on the basis of personal sensibilities and a whimsical sense of self-righteousness.
The writer is a lawyer