Suo Moto: A Case of Judicial Overreach?

Suo Moto is a Latin word which literally means “on its own motion”[1], an act of authority taken without formal prompting from another party. Meaning that a judge may take an action without a request made by the party to the court. In Pakistan, Suo Moto powers can be exercised under Article 184(3)[2] of the Constitution by the Supreme Court of Pakistan. Many have argued that without any restraints to guide the Supreme Court in cases where Suo Moto action has been taken, it has made judicial activism unpredictable and “difficult to reconcile with the rule of law”[3]. There are arguments for and against the application of Suo Moto. This article shall analyse both sides of the arguments in order to determine whether Suo Moto can be considered as an act of Judicial overreach in light of principles such as Rule of Law and, Separation of Powers.

Rule of Law or Men?

 In layman’s term Rule of Law means that law is supreme and everyone including the government must act in accordance with law. A.V Dicey defined rule of law in his book ‘The law of Constitution’ as being based on three limbs:

(1) Absence of arbitrary power, that is, no man is punished except for a breach of law,

(2) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts,

(3) The primacy of the rights of individual, that is, the constitution is the result of the rights of the individual as defined and enforced by courts of law, rather than constitution being the source of the individual rights.

So, when the courts use Suo Moto they assert that they are upholding the Rule of Law but the way 184(3) has been deployed it makes it harder to see the distinction between Rule of Law and Rule of Men.

In Mustafa Impex case[4], CJP Saqib Nisar held that, “Article 90 states categorically what the federal government is; it consists of the Prime Minister and the federal ministers (i.e. the cabinet) and not the President who is not mentioned therein (we note, in passing, the similarity with Articles 176 and 192 which respectively define the Supreme Court and the high court as consisting of the Chief Justice and judges).”

Thing to be noted here is that he used the definition of Supreme Court (Chief Justice and Judges don’t comprise Supreme Court and High courts respectively) to assert that Prime Minister doesn’t comprise of the Federal government. Natural Interpretation of 184(3) is that the constitution of Pakistan vests the power in Supreme Court not the Chief Justice of Pakistan so this raises the question that if Prime minister and Ministers making decisions on areas where federal government is supposed to make decisions is invalid then how is the exercise of 184(3) by Chief Justice of Pakistan (when it really belongs to the supreme court) valid? Therefore, a CJP driven 184(3) makes this power personal rather than institutional. It undermines the rule of law and due process because the parties are not able to review and raise contention in the form of appeal as the Supreme Court sits atop of the hierarchy of courts. Furthermore, personalizing 184(3) leads to arbitrariness and induces uncertainty which is against the core principles of Rule of Law.

Judiciary overstepping the powers given to it, may lead to interference in different organs of the state, namely, Executive and, Legislature. Judicial Overreach undermines executive authority by ruling on areas concerned with executive such as appointment of ministers and governmental structure. An example of this can be seen when Supreme court interpreted 184(3) in such a way to make “declarations” about the “honesty” of the Member of Parliament under Article 62(1)(f)[5]. Subsequently, court made the declarations of “dishonesty” against the Member of the Parliament without any trial. Supreme Court being the highest court, the aggrieved parties were not able to make appeal about the findings against them. 

This brings us to our second point of separation of powers. French political and social philosopher Baron de Montesquieu defined separation of powers in his Spirit of Law (1734)[6] as a system of checks and balances in government. Meaning that each organ of the state should monitor each other and then use its authority to limit the power of the other. This is to avoid the concentration of power at one place, as a result the three organs the state: Executive, legislature and, Judiciary must be separate and should have equal and well-defined powers. These checks and balances protect the people from authoritarian rule[7].

The examples above of Mustafa Impex Case and the ‘disqualification’ case show the judiciary crossing over into the domain of the executive, infringing on separation of powers. The Supreme Court needs to draw a distinction between the domain of fundamental rights and governmental policy. Because the executive is responsible for matters of public policy, the judiciary is responsible for ensuring that constitutional provisions are met. On the other side of the coin the executive also exercises control over the courts by using the system of judicial appointments and, promotions as a result political allies are on key positions and the superior judges are unable to do anything to fight moral and financial corruption within its own ranks. Due to this judge’s lack security of tenure and will necessarily make politically motivated decisions.

The Supreme Court should ensure the protection of fundamental rights without interfering in government policy, Article 9 says, “no person shall be deprived of life or liberty save in accordance with [the Government’s law”[8]. This shows that even if right to “life” is a fundamental right, specific hospital standards[9] are still matters of government policy. If the Supreme Court continues to interpret fundamental rights in such a vast way, it is surely going to imbalance the powers of the state conferred upon us by the Constitution of Pakistan.

Some argue that Suo Moto is a form of Judicial activism rather than Judicial overreach. Judicial activism is when social justice is given out by the court vis a vi Suo Moto. It can be said that judicial activism[10] has been invented by the court themselves as it has no constitutional provision highlighting its origin. But there exists a similar concept in other countries too, such as the United States of America. In other countries mechanisms similar to Suo Moto are used sparingly but in Pakistan that is not the case as recently we have seen a wave of Suo Moto cases taken up by the Supreme Court under the former Chief Justice Saqib Nisar[11]. The moment Suo Moto starts interfering with governance (area of the executive) rather than fundamental rights it becomes Judicial overreach. The line between judicial activism and judicial overreach is a thin one and it is against the spirit of democracy.

Gabriela Knaul, UN Special Rapporteur on the Independence of judges and lawyers visited Pakistan in 2012 and in her report to UN Human Rights Council she wrote, “role of the Supreme Court seem[ed] to have become very politically sensitive”[12]. Even 9 years later concerns raised by her still hold true to some extent. Because a number of the cases taken up by the Supreme Court are the ones which were highly scrutinized in the media and have had been sensationalized in the press such as the Money Laundering and Fake Account cases[13], Water shortage and Diamer Bhasha Dam issue[14], and the Land Encroachment Case concerning Malik Mansha Ali Khokar[15]. This gives the image that the court only takes popular media cases, this makes Suo Moto look like an instrument not to deliver justice but rather an instrument of an unelected institution to capture and consolidate power. This can make things worse for the system which already has a backlog of 1.9 million cases[16].

Suo Moto needs to be regulated but how does one determine the limits? Should the judges themselves sit and decide how to use their own powers? With much respect Judges may not be best suited to curtail their own powers. As can been seen from the fact that Supreme Court used judicial review to further enhance its own power by making the Parliamentary Committee worthless (Parliamentary Committee was created for the appointment of judges). “Subsequently, in deciding a constitutional reference filed by the president, the Supreme Court ruled that the Prime Minister and the President had “no discretion but to forward/appoint the nominees,” of the Judicial Committee, the proceedings of which were conducted in secrecy.”[17] Such immense power relating to appointment and sacking of judges gives rise to the contemptuous idea of a judiciary of the judges, for judges and,  by the judges[18]. Therefore, issue relating to limitation of such powers must be raised and solved in parliament rather than court. 

The argument boils down to whether short term gratification should come at a cost of constitutional and institutional imbalance. Pakistan needs to have robust and independent institutions to ensure smooth delivery of justice and adequate protection of rights. Therefore, a system of checks and balance will bring certainty and allow the institutions to flourish. Suo Moto in its current form and application is uncertain, and unpredictable and with court not following the specific jurisdiction can lead to overreaching effects causing a conflict with other institutions. Suo Moto is necessary in the current legal and political environment for the protection of fundamental rights but not in the disenthralled form it currently is in.     

[1]  Kenya Court,Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila (17 November 2014).

[2] Constitution of Pakistan 1973, Article 184(3)

[3] United Nations Expert Says Independent Judiciary should be reinforced, <https://reliefweb.int/report/pakistan/united-nations-expert-says-independence-judiciary-pakistan-should-be-reinforced-part> accessed 31 October 2019

[4] MUSTAFA IMPEX (2016 PLD 808)

[5] IMRAN KHAN NIAZI V MIAN MUHMMAD NAWAZ SHARIF (PLD 2017 SC 265; PLD 2017 SC 692)

[6]Separation of Powers: Checks and Balances < http://www.experiencefestival.com/separation_of_powers_checks_ and_balances.> accessed 31 October 2019

[7] Separation of Powers vs Fusion of Powers <http://www.indianofficer.com/forums/2062-separation-powers-vs-fusionpowers.html.> accessed 31 October 2019

[8] Constitution Of Pakistan 1973, Article 9

[9] The Power of Suo Moto <https://tribune.com.pk/story/1887380/1-power-suo-motu/> accessed 31 October 2019

[10] https://www.clearias.com/judicial-review-vs-judicial-activism-vs-judicial-overreach/

[11] Web Desk, Seven Suo Moto cases taken up CJP Nisar, < https://www.pakistantoday.com.pk/2019/01/17/seven-suo-motu-cases-taken-up-by-cjp-nisar/ > accessed 02 November 2019

[12] Reema Omer, Suo Moto action, may 27 2018 https://www.dawn.com/news/1410267

[13] The Power of Suo Moto <https://tribune.com.pk/story/1887380/1-power-suo-motu/> accessed 31 October 2019

[14] The Power of Suo Moto <https://tribune.com.pk/story/1887380/1-power-suo-motu/> accessed 31 October 2019

[15] The Power of Suo Moto <https://tribune.com.pk/story/1887380/1-power-suo-motu/> accessed 31 October 2019

[16] Geo news article to be inserted

[17] Who should determine limits of Suo Moto powers? <https://www.thefridaytimes.com/who-should-determine-limits-of-suo-motu-powers/> accessed 31 October 2019

[18] Who should determine limits of Suo Moto powers? <https://www.thefridaytimes.com/who-should-determine-limits-of-suo-motu-powers/> accessed 31 October 2019