Suo motu powers: Legal fraternity to back determination of scope, parameters

January 20,2019

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ISLAMABAD: Chief Justice of Pakistan Justice Asif Saeed Khosa’s declaration to determine the parameters and scope of exercise of suo motu powers by the Supreme Court under Article 184(3) of the Constitution, is going to be fully supported by the legal fraternity as well as major political parties.

“We have been crying since long that limits and confines of the suo motu powers must be immediately regulated,” Pakistan Bar Council (PBC) Vice Chairman Kamran Murtaza told The News when contacted. “Two years back, the PBC passed a resolution calling for fixing the bounds of Article 184(3) as we are against the method and way the provision has been unprecedentedly invoked ad nauseam.” When approached, highly respected lawyer Abid Hassan Manto told this correspondent that the full Supreme Court and not a few judges should fix the parameters of Article 184(3) which will throw up a diverse opinion on the subject.

“The limits of the use of this provision have neither been decided in the past nor do rules exist to the effect. Issues falling in the suo motu jurisdiction have also never been identified. The Supreme Court rules can be amended to list the matters on which suo motu notice can be taken. The parliament can amend Article 184(3) to provide for the right of appeal,” he said.

The last Pakistan Muslim League-Nawaz (PML-N) government had prepared a draft to amend this provision to put a ceiling on the exercise of the suo motu authority, but could not move in parliament for not having the requisite majority and because of political confrontation. The Pakistan People’s Party (PPP) has repeatedly urged changes in this article so as to restrict the suo motu powers. The two parties had been frequently severely bitten by the application of Article 184(3).

Kamran Murtaza said that if the parliamentary players agree to altering Article 184(3), the PBC can deliver them the required amendment in just five minutes. “Just two short provisos needed to be added to this constitutional clause specifying the issues that can become subject of the suo motu action, and providing for the right of appeal. Only those issues will be enumerated where no remedy is available in the existing laws.”

However, he believed that since there was mistrust between the ruling coalition and the opposition parties, they may not agree to approval of such amendment. No single party is in a position to pass such changes.

The PBC leader said there are two ways of defining the parameters and giving the right of appeal. One was to amend the Supreme Court rules that the highest judicial forum can itself do. The second method was that parliament introduce this amendment, he said adding that in case the legislature moves, it will provide a foolproof system that can’t be changed or reversed even by any court.

Kamran Murtaza said that the appeal against the decision on a suo motu notice should be heard by a bench larger than the one that originally adjudicated upon the issue. Such a panel of judges, he stressed, should have due provincial representation from the federating units. The appellate bench will obviously not include the judges, who first decided the suo motu case.

He was of the view that the exercise of suo motu powers was totally whimsical and justified during the incumbencies of former chief justices Mian Saqib Nisar and Iftikhar Chaudhry.

Article 184(3) says . . . 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 the Constitution is involved, have the power to make an order to achieve this objective.

The PBC leader explained that the words “Supreme Court” and not the chief justice have been used in the provision, which means that no single judge and not even the chief justice can assume to himself the power to invoke this jurisdiction, and it has to be decided by the Supreme Court.

Kamran Murtaza said that the PBC, the Supreme Court Bar Association and other representative bodies of lawyers should be taken into confidence about the amendments to determine the parameters of the suo motu exercise.

He also proposed that the full court should meet at least once in a month may be even for 15 minutes, which, he said, will infuse harmony in the highest judicial body.

As the chief justice Saqib Nisar stated more than once that use of article 184(3) would be regulated, but didn’t do anything practical and kept exercising the authority unbridled.

While addressing the full court reference on the eve of Saqib Nisar’s retirement, Justice Khosa stated that the suo motu powers will be exercised very sparingly and only in respect of larger issues of national importance where either there is no other adequate or efficacious remedy available or the available constitutional or legal remedies are ineffective or are rendered incapacitated.

He also said that either through a full court meeting or through a judicial exercise, an effort shall be made to determine and lay down the scope and parameters of exercise of the original jurisdiction of this court under Article 184(3).


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