History of voluntary court initiatives in Pakistan, India, US

LAHORE: While toeing the judicial legacy of his predecessors Justice Iftikhar Chaudhry, Justice Tassaduq Hussain Jillani and Justice Nasir-ul Mulk, Pakistan’s new Chief Justice Jawwad S. Khawaja has taken his first “suo moto” action over the news of Rs3 billion alleged corruption in the recruitment process of the Sindh police.
Acting on its own cognizance, Chief Justice Pakistan Jawwad Khawaja has now ordered the Inspector General (IG) of Sindh Police to appear before the Supreme Court on August 31 with the relevant record and explain the promotion policy of the police officials when there was a ban on shoulder promotions.
IG Sindh Police has also been asked to enlighten the Supreme Court arbiters about the need to engage a private lawyer in an arms purchase case and then paying him heavily through a Welfare fund dedicated to the welfare of widows and orphans.
The Sindh Police Chief thus finds himself on the horns of a dilemma, as was the case with dozens of people who were questioned by the Justice Iftikhar Chaudhry-led Supreme Court that had taken up cases involving over Rs400 billion between 2009 and December 2013.
“Suo moto” and “sua sponte” are both Latin terms meaning “acting on its own motion” and “acting on his/her own accord” respectively.
These terms are normally associated with court judges initiating any action without a prior request from the parties in litigation.
In countries like the United States, another term “nostra sponte,” translated as “acting on our own accord,” is sometimes used by the court itself, especially in cases where the action has been taken by a multi-member court, such as an appellate court.
Since his appointment as Judge of the Supreme Court on June 5, 2009, Justice Jawwad Khawaja had, of course, witnessed all the suo motos taken by Chief Justices Iftikhar Chaudhary, Tassaduq Hussain Jillani and Nasir-ul Mulk in innumerable cases.
While Chief Justice Jawwad Khawaja had penned down the leading opinion in the Makro-Habib case, in which the Supreme Court had ordered the wholesale giant Makro-Habib and its patron Army Welfare Trust to restore the playground in Saddar Karachi on which it had established its outlet, he had written a concurrent viewpoint in the case related to the National Reconciliation Ordinance, which was declared null and void.
As a judge, he was an active member of the Supreme Court that had created a stir by giving verdicts in cases pertaining to the legitimacy of the infamous National Reconciliation Ordinance, the legal standing of the November 2007 Emergency proclaimed by General Musharraf, the Hajj scandal (the then sitting Federal Minister for Religious Affairs Hamid Saeed Kazmi was sent to jail and the then incumbent Premier Yusuf Raza Gilai’s son Abdul Qadir Gilani was questioned), the National Insurance Company Limited (NICL) scam (voluntary action taken over a Transparency International letter), the rental power plants rip-off (the Apex court had saved around Rs455 billion through its timely action and a sum of Rs8.69 billion was recovered from the rental power plants on account of advance payments dished out), the Bank of Punjab Case (the institution’s President Hamesh Khan was handcuffed along with owners of Haris Steel Mills who had obtained a Rs10 billion plus credit facility through bogus/insufficient collaterals), the public lynching of two brothers in Sialkot (a top police officer was sent to prison and other culprits were given death), the Evacuee Trust Board Case (the court had blocked sale of hundreds of acres of state land worth billions of rupees), the Federal Government Housing Foundation land scam, the Sindh land allotment case (the court had taken notice of the regularisation of 50 acres of Karachi land at throwaway prices that led to the immediate cancellation of the allotment), the Pakistan Steel Mills scam (a suo moto notice of the loot and plunder of this national institution lading to a loss of Rs22 billion), the New Murree Project (Supreme Court had ordered the end of this Rs60 billion project, which would have proved a man-made disaster for entire forest range of Murree), the Rs256 billion loan write-off cases since 1971), the case involving a Rs7 billion corruption in Pakistan Cricket Board, the case related to the cartelisation of sugar mafia (price of sugar was fixed at Rs40 per kg), the case pertaining to the alleged corruption of former Attorney General and an ex-Governor Punjab Latif Khosa (the then Chief Justice had referred this case to Pakistan Bar Council after an ordinary citizen had alleged that Khosa had taken bribe of Rs3 million from him for influencing a court decision), the Murree Gas Pipeline Project (CJ Iftikhar Chaudhary had taken a suo moto notice of alteration in Murree gas pipeline project that was to benefit Hamza Shahbaz, who had constructed a bungalow at Dunga Gali. This alteration was costing Rs750 million along with destruction of thousands of trees), a suo moto action was also taken over the flogging of a girl in Swat, yet another suo moto action was initiated over the extension of Canal Road Lahore where hundreds of trees were being cut to facilitate the elite), the illegal CDA allotments, the conviction and consequent disqualification of the then Prime Minister Yusuf Raza Gillani in a contempt of court case, the famous Shahzeb Murder case, killing of a Karachi civilian Sarfraz Shah at the hands of the Rangers, the adverse law and order situations in Karachi and Quetta, the missing persons case, a Sindh Assembly MPA Waheeda Shah’s misdeed of slapping an election commission official and her resultant disqualification, Actress Attiqa Odhu’s liquor confiscation case and the much-publicised allegations of business tycoon Malik Riaz against the then Chief Justice’s son Arsalan Iftikhar etc.
It can thus be stated with authority that Chief Justice Jawwad Khawaja has seen the beginning of a new era of constitutional jurisprudence in Pakistan, whereby constitutional deviations were addressed and the social role of the rule of law was expanded.
In his December 11, 2013 speech, Justice Iftikhar Chaudhry’s successor and the Chief Justice-designate, Justice Tassaduq Hussain Jillani, had viewed: “There is a need to consider/determine the limits and contours of jurisdiction under Article 184(3) of the Constitution with a view to discouraging frivolous petitions and to preventing the misuse of jurisdiction by vested interests.”
He had stated this while addressing the Full Court Reference held in the honour of the then outgoing Chief Justice Iftikhar Chaudhry.
During his stay in office, Chief Justice Tassaduq Hussain Jillani had taken a few suo moto notices too.
In 2014, the Jillani Court had taken suo moto action following a petition filed by an NGO “Justice Helpline” regarding the Peshawar Church attack in 2013, as well as other petitions filed by the Hindu Community against desecration of their places of worship and press reports citing threats to the Kalash tribe by the Taliban.
Hence, on June 19, 2014, the Supreme Court had issued a landmark decision on the protection of minorities and freedom of religion.
While authoring this decision, Tassaduq Jillani was assisted by Justices Azmat Saeed and Mushir Alam.
His successor, Chief Justice Nasirul Mulk, had headed the bench that had rejected four petitions that had sought Prime Minister Nawaz Sharif’s disqualification on the basis of lying on the floor of the National Assembly in relation to the role of ‘mediator and guarantor’ that the Sharif government had offered to the Chief of Army Staff in the face of the protest and sit-ins by Pakistan Tehreek-e-Insaaf and Pakistan Awami Tehreek.
On November 22, 2014, he had also taken a suo motu notice of the killing of a Christian couple in Kot Radha Kishan on November 4, 2014. The Christian couple was allegedly beaten to death by a mob and their bodies were burnt in a brick kiln on allegations of blasphemy.
The Supreme Court had directed the provincial government of Punjab to submit a report within three days.
During his 13-month tenure, Justice Nasir ul Mulk had then taken suo moto notice of a gang rape of a woman and her 12-year-old daughter in Ghotki, Sindh.
The mother and daughter were then set on fire by their assailants. The notice was taken after media reports surfaced on April 9, 2015.
Chief Justice Nasir ul Mulk, along with two other senior judges, had also decided to probe rigging allegations in the 2013 general elections.
While the three-member commission had found massive irregularities in how the elections were conducted, it had nevertheless concluded that the public mandate was not stolen and had ruled in favour of the continuity of democratic institutions.
He had also accepted the failure of the criminal justice system of the country, while giving legitimacy to military courts—-a decision that was in line with the Parliament’s wishes and the 21st Amendment passed by it in this context.
In the United States, although the “sua sponte” actions are a fairly normal routine, courts have been quite cautious in invoking this constitutional privilege rarely, because it is certainly not easy to balance the competing policy interests.
Although there are numerous provisions in the American Federal Rules of Civil Procedure that authorise sua sponte decision-making, critics have asserted that a fear of judicial bias seems to lie at the core of such voluntary court decisions because competing interests may sometimes weigh in favour of judicial intervention.
They normally raise two questions: One question relates to how such decision-making should be accomplished and the second question is whether sua sponte decision-making should be codified in some manner, and if so, how.
These critics have often apprehended that while considering issues not raised by any of the litigants, judges might be unable to remain impartial when deciding legal questions that they themselves have inserted into the litigation.
These anti-sua sponte legal experts are heard commenting bluntly that while exercising their discretion to intervene, the appearance of justice might suffer because the litigants and the general public might conclude that the judge was now a partisan player in the litigation rather than a detached observer to the dispute!!
(Reference: Boston University School of Law Professor and a Harvard Law School graduate Robert Bone’s book “Who decides? A critical look at procedural discretion”)
In the Carlisle versus United States Case of 1996, the American Supreme Court had ruled that a District Court had no jurisdiction to grant an untimely motion for judgment of acquittal.
In this case, one Charles Carlisle, arrested for possessing marijuana, had filed an application before a District Court for acquittal after the jury had returned a guilty verdict.
The District Court had granted the motion even though it was filed one day outside the time limit prescribed.
While reversing the verdict during the course of a sua sponte action, the Court held that the District Court had no authority to grant the petitioner’s motion for judgment of acquittal filed one day outside the prescribed time limit and grant such leverage to any accused.
This opinion was authored by Justice Antonin Scalia, who had observed: “Judges may not stretch the deadline by even one day. There is simply no room...for the granting of an untimely post-verdict motion for judgment of acquittal, regardless of whether the motion is accompanied by a claim of actual innocence.”
In the Trest versus Cain Case of 1997, the petitioner Richard Trest had sought a writ of habeas corpus, which would have vacated a long sentence that he was serving in a Louisiana prison for armed robbery. The District Court had refused to issue the writ.
The plaintiff had then gone on to lodge an appeal before the Court of Appeals, which had also ruled against him on the ground of “procedural default.”
The Court of Appeals had observed that since the petitioner had failed to raise his federal claims on time in state court, he could not be given any relief, viewing further that in the absence of special circumstances, a federal habeas court could not reach the merits of Trest’s claims.
While delivering the opinion of the Court in December 1997, Justice Breyer had opined:” A court of appeals is not “required” to raise the issue of procedural default sua sponte. It is not as if the presence of a procedural default deprived the federal court of jurisdiction, for this Court has made clear that in the habeas context, a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter.”
(References: Cornell University Law School Journal and the Ohio State Law Journal)
Numerous other sua sponte decision-making precedents can be found in cases like Henderson v. Shinseki, Wood v. Milyard, Greenlaw v. United States, Dennis v. United States and McNeil v. Wisconsin etc.
In India, Article 32 of the country’s constitution primarily contains a tool which directly joins the public with judiciary. Public-Interest Litigation may thus be introduced in a court of law by the court itself rather than the aggrieved party or another third party. For the exercise of the court’s jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court.
In Public-Interest Litigation, the right to file suit is given to a member of the public by the courts through judicial activism.
However, before the 1980s, only the aggrieved party could approach the Indian courts for justice.
But after the 1975 Indian Emergency (imposed between June 1975 and March 1977), Justice Bhagwati and Justice Krishna Iyer were among the first judges to admit Public-Interest Litigation in courts, though in order to curb frivolous litigation, a former Chief Justice, S.H. Kapadia, had stated that substantial fines would be imposed on litigants filing bogus Public-Interest Litigation in a bid to gain some financial benefits etc.
This Indian Supreme Court verdict had said it all: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.”
While rejecting the criticism of judicial activism, the Indian Supreme Court has publicly stated that the judiciary may step in to give direction because due to executive inaction, the laws enacted by Parliament and the state legislatures for the poor since independence have not been properly implemented.
(Reference: Judgment of an Indian Apex Court bench consisting of Justices G.S. Singhvi and Asok Kumar Ganguly)
It was in the SP Gupta versus Union of India Case that the Supreme Court of India had first defined the term Public Interest Litigation in the Indian Context.
In the Miss Veena Sethi v. State of Bihar Case of 1982, the court had treated a letter addressed to a judge of the court by the Bihar-based Free Legal Aid Committee as a writ petition.
In the Olga Tellis v. Bombay Municipal Corporation Case, a journalist had filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to construction activity by the respondent corporation.
The Indian Supreme Court had recognised the right to livelihood and housing of the pavement-dwellers as an extension of the protection of life and personal liberty, and had issued an injunction to halt their eviction.
In the in Parmanand Katara v. Union of India Case, the Indian Supreme Court had articulated a ‘right to health,’ when it ruled that no medical authority could refuse to provide immediate medical attention in emergency cases.
The “Hindustan Times” had highlighted the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment, since many hospitals and doctors had refused to treat them unless certain procedural formalities were completed in these medico-legal cases.
The Supreme Court had directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law.
In the Hussainara Khatoon Vs State of Bihar Case of 1979, a petition was filed regarding the condition of the Bihar jail prisoners, whose suits were pending in the court.
Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with.
In this case, the Indian Supreme Court had upheld that the prisoners should get benefit of free legal aid and fast hearing. It was due to this verdict that 40,000 prisoners, whose suits were pending in the court, were released from the jail. Prominent newspaper “The Indian Express” had actually exposed the plight of under-trial prisoners in the state of Bihar.
In the Sheela Barse v. State of Maharashtra Case, the court’s attention was drawn towards the plight of women prisoners who were confined in the police jails in the city of Bombay.
Journalist Sheela had asserted that they were victims of custodial violence. The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay. He was ordered to visit the Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain whether they had been subjected to torture or ill treatment.
Based on his findings, the Court had issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official. In the Legal Support Society versus the Chief Justice of India & Others Case, the Indian Apex Court had ruled: “The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community.”
While addressing the Singapore Academy of Law on October 8, 2008, the then Indian Chief Justice K.G. Balakrishnan, had stated: “The Indian Courts have pushed the boundaries of constitutional remedies by evolving the concept of a ‘continuing mandamus’ which involves the passing of regular directions and the monitoring of their implementation by executive agencies.
In addition to designing remedies for ensuring that their orders are complied with, the Courts have also resorted to private law remedies such as injunctions and ‘stay’ orders in Public Interest Litigation matters.”