The ‘messiah complex’ – the belief (or grand delusion) that one is destined to save others – has long affected our non-elected state institutions, and the latest victim appears to be none other than our highest judicial forum.
Armed with the most formidable constitutional weapon in its arsenal – the ability to take cognisance of matters on a suo-motu basis – the Supreme Court has, in recent months, started taking unilateral notice of any matter that gains even a modicum of national prominence. And, while its intentions may be nothing short of noble, in so doing it unwittingly undermines the executive, transgressing its constitutional mandate and falling back into a perilous pattern of unbridled judicial populism that is reminiscent of the Chaudhry Iftikhar era.
Since its game-changing restoration, the Supreme Court has reconceptualised its institutional identity. This is not the toothless apex court of yesteryears, beholden to the vested interests of military rulers and political elites. It has, to a large extent, reclaimed its moral legitimacy, adamantly asserted its independence and emerged to the political fore as a significant third power.
But there exists a thin line between judicial vigilance and judicial populism. The Supreme Court ought to be careful lest it find itself teetering on the cusp of its jurisdictional powers, functioning more on whimsy than on law.
From a comparative legal perspective, the power to take suo-motu action, as encapsulated under Article 184(3), is already rather anomalous – a characteristic quite unique to the constitutional framework of Pakistan and its regional counterparts. In essence, it allows the Supreme Court to bypass the traditionally adversarial nature of our legal system, don an inquisitorial cape, and adjudicate on any matter that involves a question of fundamental rights, without the formal requirement that the question be brought before it by an aggrieved party.
In this manner, it offers a potent antidote against state excess – a judicial safety net, so to speak. Thus, if there occurs a critical violation of fundamental rights and the state patently fails to rectify its action or omission, the possibility of suo-motu action stands as the last remedy to counter such an infringement. This is a perennial threat that hangs over the executive machinery, compelling it into action, even if it is done reluctantly. In extreme cases, it even functions as a final refuge for the destitute or disenfranchised litigant – someone who exists within the peripheries of the legal system, incapable of accessing justice through ordinary mechanisms.
However, while this all-encompassing power is capable of correcting maladministration and dispensing much-needed justice, it is equally capable of lending itself to misuse. If left unchecked, it harbours the potential to render subordinate courts redundant, undermine rule of law and irreparably distort the constitutional relationship between the judiciary and the executive.
After all, if the Supreme Court begins summoning public functionaries to answer for every noteworthy headline and ticker, chiding them for their inaction and scolding them for alleged malfeasance, it will have the unintended effect of irretrievably erasing public confidence in state agencies – confidence that already stands on shaky foundations. In cases where the notice taken is premature, or where there exist viable alternative forums for the matter to be addressed, it will also have the effect of destroying the responsiveness of these institutions to issues of public import. This will further stunt their institutional growth and development.
There is also, of course, an underlying irony to this reinvigorated judicial activism. While the Supreme Court is busy reprimanding executive officers for their lethargic performance, the state of our judicial system, which lies exclusively within its own sphere of influence, is also seen as affected by nepotism, corruption and inefficiency. It is, therefore, odd to berate the executive for maladministration, particularly when the judicial apparatus is screaming for procedural and substantive reforms.
As for those who devotedly spur the Supreme Court forward, their line of reasoning is deceptively simple: public administration has become so ineffectual that the Supreme Court has no other option but to resort to direct intervention. But behind the populist appeal of this argument lies the slippery logic of all our previous messiahs. The very doctrine of necessity that once facilitated military coup d’etats, is now being employed to rationalise judicial overreach – albeit in a more nuanced and watered-down manner.
By resorting to its suo-motu jurisdiction without any guiding legal framework, the Supreme Court is blindly trudging into the treacherous territory of adopting a general supervisory function over the executive. It is, in effect, seen to be constantly peering over the executive’s shoulder and occasionally reprimanding it for indolence, and perpetually dishing out its personal brand of political wisdom. This is a role that is neither desirable nor constitutionally ethical.
What the Supreme Court must do is formulate some semblance of a policy for the exercise of its extraordinary jurisdiction under Article 184(3). The exercise of discretion by any authority must always be subject to fetters, even if that authority is the Supreme Court itself. Even as far back as 2011, in the heyday of Chaudhry Iftikhar’s judicial activism, the International Commission of Jurists, on a visit to Pakistan, urged the Supreme Court to exercise judicial restraint and warned that unhindered use of its suo-motu powers may “lead to a corrosion of ...rule of law and a blurring of the constitutional separation of powers”.
The public may be clamouring for a messiah, but the Supreme Court cannot become one. No matter its claims to the contrary, a messiah is essentially a being of politics. The Supreme Court can serve this country far better by clearly delineating the extent of its jurisdiction and diligently performing its functions within it.
The writer is an advocate.