Regulating Suo Moto powers

If continued to be practiced as it currently is, there will be no end to controversy and criticism

Fundamental Rights, involving public interest, without having to observe the conditionalities and formalities, stipulated in Article 199.

THE exercise of suo moto powers by the Chief Justice of the Supreme Court is the subject of intense debate and disputation amongst the politicians, lawyers and journalists/analysts. The print and electronic media is awash with comments/analysis of the exercise of such power by the Court in the recent past. Two verdicts, in particular, are the subject of discourse: One, the order of 7th April 2022 on restoration of the National Assembly, dissolved by Mr Imran Khan. The order further forced him to face the no confidence motion, wherein he was removed. Now a year later, the Court again exercised such power and ordered the Election Commission of Pakistan to stick to the constitutional deadline for holding elections, and fixed 14th May 2023 for the poll of the Provincial Assembly of the Punjab. Admittedly, both the cases – indeed political issues - arose due to disregard for democratic norms/principles and blatant violation of the Constitution. The Court had to intervene, because the Constitution entrusts it with onerous responsibility to “preserve, protect and defend the Constitution”.

The dominant political forces – PDM and PTI – have diametrically opposite stands on the verdicts: the PDM applauded the verdict on restoration of National Assembly but is critical of the order for holding elections, whereas the PTI stance is exactly the opposite! Obviously, the reaction is in line with the declared political objectives of each: the PDM - Government in power –resisting and PTI - Opposition Party - insisting on holding urgent elections. The issue being political, the rulings - through strictly based on law and the Constitution – are made controversial.

There is no doubt or misgiving as to the exercise of suo moto powers by the Court. It is conferred by Article 184 (3) of the Constitution, saying, “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I and II is involved, have the power to make an order of the nature mentioned in the said Article”. The Supreme Court in the case of Benazir Bhutto v Federation (PLD 1988 SC 416) had the occasion to interpret this provision. The Court held that it could take up incidents of violation of

Inherent in this Article is the power to carry out Public Interest Litigation for the enforcement of Fundamental Rights of the poor and needy people and weak, vulnerable and marginalized sections of the society. They have to be assisted on account of their low social/economic status, so as to avail the benefits of law. In such situations, the Court can assume jurisdiction suo moto (on its own motion) and conduct proceedings, without filing a formal petition, paying court fee and engaging a counsel. In this regard, the Court has to its credit, taking up complaints and granting relief in the form of damages/compensations, restoring rights/entitlements, stopping illegalities/irregularities, checking corruption, preventing pollution and preserving the environment, providing access to justice, education, health facilities and issuing directions for legislative enactments to ban the bonded labour, illegal organ transplants and protect the places of worship (Churches) of the minority community, etc.

The current controversy is however limited as to the mode/manner of taking a suo moto action, as to whether it should be at the sole discretion of the Chief Justice or also involve other judges of the Court? The PDM Government sought to regulate this prerogative of the Chief Justice through legislative enactment by constituting a 3Member Committee, comprising the Chief Justice and two most senior judges of the Court, for the purpose. But it was done at the wrong time and in a wrong manner; and the measure rightfully stayed by the Court, it being an intrusion into the internal working (practice and procedure) of the Court, which is prohibited under Article 191 of the Constitution.

Since the system of taking up cases suo moto is not institutionalized, it is largely dependent on the choice/option as well as dynamism/activism of the Chief Justice. Thus, Chief Justice Afzal Zullah (1990-93) began taking up complaints after he reduced the Court pendency to 2000 cases. Similarly, Chief Justice Iftikhar Chaudhry (2005-13) brought down the pendency to 10,000 (in early 2006) and then opened Human Rights Cell for processing public complaints. On average, 250-300 letters/applications were daily received. 95% of the grievances were redressed at the administrative level, when reports were called from the head of the department/agency; who will grant relief and the case will be closed. This way, hundreds of thousands of complainants got relief. Hardly 5% cases went for trial.

Not being fully institutionalized, currently, the Chief Justice initiates the suo moto action and fixes the matter in his own bench for hearing. This is unfair, given the fact that the issue of admissibility – a major hurdle - is yet to be crossed. The Article does not permit each and every case of violation of Fundamental Rights to be entertained by the Supreme Court. The jurisdiction is concurrent, alongside the High Court, therefore, in the interest of justice, the lower forum better entertain the case, so appeal may lie to the Supreme Court. Otherwise, the Supreme Court has to give a finding that it is taking up the case, in preference to the High Court; even though the right of appeal is denied to the aggrieved party. Thereafter, it should further hold that the issue is of public importance and expeditious disposal is warranted.

The Bar has been constantly raising voice for regulating this suo moto exercise of authority. Of late, few judges have also raised the point, arguing that it is the power of the Court. The Supreme Court Rules 1980 (Rules) deals with the manner of filing under Article 184 (3). Order XXV provides for their scrutiny and placement before a bench for disposal. The Rules are however very sketchy, and silent about the suo moto action. This is a gap, which needs to be filled by suitable amendment. There are several ways to do it. But in line with the present scheme of filing and processing cases, the amendment may authorize the Registrar to receive letters, complaints, and after scrutiny, place it before a bench. Similarly, a judge may also initiate a suo moto action and then refer the matter to the Registrar for placement before a bench, of which he (the judge initiating the case) is not a member.

Besides, to avoid its abuse/misuse, certain guidelines be given, specifying the type/category of cases to be entertained. 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. Similarly, cases filed by pseudo public-spirited individuals for settling scores or seeking publicity, indulging in wild/reckless allegations and stigmatizing opponents, should be discouraged through imposition of cost/penalty to prevent abuse of the process and guard against false/frivolous litigation.

The author served as Registrar, Supreme Court and Secretary, Law & Justice Commission of Pakistan is a religious injunction (a big if, to say the least), that kind of behaviour was probably the exact opposite of the prudence the Quran enjoins on individuals who take it upon themselves to serve and communicate Islam. I ignored the lad (of course), but such is the spirit of Ramadan that I remember being rather amused, and not irritated as I might have been on other occasions.

One day, our Qari lost track of the count of Taraweeh rak’ah, the result being that we prayed two raka’at more than usual. The whispers around the mosque suggested that many were not too happy with the ‘lapse’. Especially inconsolable was an elderly man who kept registering his protest till after the witr prayer. The same uncompromising (although I am sure well-intentioned) spirit was at play when a meticulous and conscientious worshipper objected to the Assistant-Imam’s pronouncement of the iqamah for Asr prayer on ‘grounds’ that the latter was not properly aligned with the other worshippers in the first row. Imam sahab had to assure him that that was quite all right. I used to believe that I had heard the whole gamut of objections on other people’s religious practices. How wrong I was! Well, one learns every day. In our local mosque there is provision for ladies to attend the Taraweeh prayer in the basement. On the third night just after the Isha prayer, Imam sahab hesitantly announced that there were complaints about some women who kept talking to each other at the back instead of joining others in prayer, which distracted the other ladies. Imam sahab politely asked the concerned ladies to desist; but with the air of a man who knows that that is easier said than done. On the gents’ floor, I saw many an amused face upon hearing the appeal. Yet another precious memory of last Ramadan! Au revoir, Ramadan!

The author is a connoisseur of music, literature, and food (but not drinks). He can be reached at www.facebook.com/hasanaftabsaeed

Editor’s mail

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Don’t hide; lead

IT seems Pakistan has become a republic where anyone having a group of, say, a thousand individuals with aggressive and violent tendencies can be above the law. The recent riots in Lahore depict the true picture of a banana republic. No one is above the law. One should face the criminal cases through legal ways and not by blocking roads or calling one’s supporters to fight the state machinery.

Leaders should lead from the front, not by sitting and hiding at home and refusing to face the courts. One should follow the example of Nelson Mandela and other such national leaders who faced imprisonment for more than two decades, but never asked their supporters to save them from the law. In the past, political leaders used to give life lessons about everyone being equal before the law by setting personal examples. They offered arrest even if they were implicated in a false case. But we have leaders who love to hold the entire justice system as hostage. Such a situation has brought the country to the brink of anarchy and civil war. Never before the country has witnessed such cowards posing as leaders.

Breaking the law and then getting away with it has been the hallmark of the political elite. The law of the land apparently is applicable only to the poor and the middle classes of the country. This is the unfortunate and undeniable reality of life in Pakistan.

MIR BEWRAGH KHAN RIND SUKKUR

Tribal feuds out to tear social fabric

IN a chilling and gut-wrenching incident, a professor, who had earned his doctorate from France, was shot dead in Kandhkot in an alleged feud over somebody’s so-called ‘honour’. Dr Muhammad Ajmal Sawand was brutally murdered by members of the Sundrani clan while he was en route to Sukkur where he was serving as a deputy director at a leading academic institution.

The professor’s death is a huge loss to the country and academia. In one of the several videos that are available online, the professor could be seen telling the audience before him that he was earning Rs30,000 for an hour in France, but he decided to return home to teach his own people. Alas! His dream to contribute to the country and teach its people died an untimely and tragic death. While the security and economic situation of the country has led people to search for greener pastures, Dr Ajmal’s decision to return to the motherland was a testimony to his commitment to the country of his birth. As per the figures kept by the Bureau of Emigration and Overseas Employment, 832,339 Pakistanis went overseas for work in 2022 alone. Dr Ajmal was a rarity in this regard.

But what did his own people do to him; what did his country do to him? They failed him. With his death the reason has failed; the conscience has been asphyxiated; the hope for a better future and a civilised nation has been dimmed. The abominable practice of feuds between and among clans over ‘honour’ or on any other pretext is a sign of a repressive, regressive and inhumane society. It has exacted a heavy toll on our society and needs to stop immediately.

The prevalence of this thuggery and culture of impunity enjoyed by the perpetrators of such heinous crimes fly in the face of tall claims and decisions by the provincial government to rid the region of anarchy and bring some semblance of normalcy. Such incidents reveal how tenuous the control of the government and its machinery is over such matters and such areas. It beggars belief that a government that wastes no time in unleashing force on peaceful protesters, be they teachers, health workers, students, or other human rights activists, is struggling to contain these violent elements that are hellbent on destroying the very fabric of our society. It is high time the government moved beyond mere condemnations and rigorously implemented measures aimed at ensuring a better, secure and safer region with access to education, and zero tolerance for the obscurantist forces. Also, the perpetrators of this horrific crime must be brought to the book.