An era of Suo Motus and Judicial Activism
October 8, 2020 03:12 PM
The tenures of both Justice Iftikhar Chaudhry and Justice Saqib Nisar, as Chief Justices of the Supreme Court of Pakistan, would be remembered for the massive use of Suo Motu powers. Justice Iftikhar Chaudhry touched the ever-highest mark of initiating 70 Suo Motu actions interfering in almost every sphere of life in the country. At the time of his retirement, his critics termed his tenure the ‘reign of Suo Motus’.
His successor, Justice Saqib Nisar broke his record when he ended up taking over 100 Suo Motu notices on major and minor cases. This led to jurists’ terming it a sort of judicial activism wherein some cases provisions of the Constitution are ignored and the writ of the government is undermined.
Legally speaking, the Suo Motu is an action taken by a superior court of its own accord, without any request by the parties involved. It is a Latin legal term which means “on its motion” and implies that an action was taken by a group or person on their own. To define the term Suo Motu in simple terms is taking control over a matter.
In Pakistan, the superior courts used to initiate legal proceedings on their own based on media reports, telegrams, and letters received from aggrieved people, taking a Suo Moto cognizance of the issue. Suo Moto action can best be explained when either a High Court or Supreme Court takes control over the matter or the case.
Former Chief Justice Saqib Nisar.
Justice Iftikhar started targeting the government and the military establishment as he started hearing the famous case of ‘Missing Persons’ and reviewing the worsening law and order situation in Karachi. Another case was the holding of Local Body elections. His actions were harsh even though they had earned an endorsement from the general public. However, towards the end of his tenure, his relationship with public opinion decreased gradually. No one could say with certainty that the next Chief Justice would change this scenario.
Legal experts and renowned jurists believe that the option of initiating a Suo Motu action should be exercised sparingly and that too only when the objective is to ensure fair play and upholding of the justice system.
But the wave of judicial activism in terms of initiating Suo Motu actions during Justice Chaudhry’s tenure had been at the expense of parliamentary sovereignty and supremacy. The Black’s Law Dictionary defines judicial activism through Suo Motu actions as "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations, and are willing to ignore precedent."
However, it may be kept in mind that specifically, the Suo Motu jurisdiction, under Article 184(3) read with 187(1), of Pakistan’s Constitution has empowered the Supreme Court to "make an order", if it considers; "that an issue is of vital public significance; and the violation of fundamental Human Rights has arisen, and the objective is the provision of "complete justice".
The former CJP, however, redefined the powers and scope of Suo Motu jurisdiction under Article 184(3) of the Constitution. The prominence and impact of judicial activism in Pakistan, following the restoration of Justice Iftikhar Chaudhry, could be judged from the fact that the number of applications submitted in the Human Rights Cell, increased to the tune of 139,906 applications per day from 2009 to 2011, as compared to 500 applications per year in the past.
The evolution of jurisprudence under Article 184(3), during the controversial tenure of Justice Iftikhar Chaudhry, reveals that the former head of the apex court was more than willing to intervening in every issue and even tried to control sugar prices, failing to realize that the prices of commodities were controlled by market forces and not through judicial orders.
Former Chief Justice Chaudhry Iftikhar.
Even though Chaudhry Iftikhar was regarded as having a tilt towards Sharifs, took Suo Motu notice of the alteration in the Murree gas pipeline project which was alleged to benefit Hamza Shehbaz Sharif who was accused of constructing a bungalow at Dunga Gali. This alteration was costing Rs750million along with the destruction of thousands of trees. Similarly, he initiated Suo Motu action against overextension of Canal Road Lahore where hundreds of trees were being cut to facilitate the elite.
The CJP did not hesitate to take Suo Motu after learning the theft of electricity worth millions of rupees by former military dictator General Pervez Musharraf and some other influential residents of Islamabad’s Chak Shahzad farmhouses.
When the issue of cartelisation of the sugar mafia leading to an unprecedented increase in the sugar price was brought before the apex court, the CJP took Suo Motu notice and fixed the sugar price at Rs40 per kg ordering the federal and provincial governments to take strict action to ensure implementation of the Supreme Court orders.
Justice Chaudhry ordered the end of the New Murree Project, worth Rs60 billion, which was a man-made disaster for the entire forest range of Murree.
Similarly, the CJP took Suo Motu notice of the regularisation of 50 acres of Karachi land at throwaway prices that led to the immediate cancellation of the allotment.
When dozens of innocent people were being killed in Karachi, it was again the Supreme Court who took Suo Motu notice of the incident, and CJP with two other members of the court went to Karachi and heard cases there. The apex court handed down judgment in the Karachi violence case, which resulted in the demotion of dozens of police officers promoted out of turn.
The Supreme Court also saved around Rs455 billion through its judgment in the Rental Power Plants (RPPs) case. During the hearing of the RPPs case, in pursuance of the orders passed by the apex court from time to time, a sum of Rs8,689,224,000 (rupees 8 billion 689 million 224 thousand) was recovered from the RPPs on an account of advance payments and interest.
Memo Gate case: The Supreme Court took up a case instituted by Mian Nawaz Sharif regarding a memo allegedly written by Husain Haqqani, a former envoy to the US. A commission was formed over the issue, which submitted its report. It led to the resignation of Husain Haqqani.
Justice Chaudhry also ruled in the Rizwan Gill case that anyone who has submitted a fake educational document with the Election Commission of Pakistan cannot hold a position in the Parliament. The vital judgment led to the departure of several parliamentarians after losing their seats.
The court took up cases which raised the issue of whether a dual national can hold a position in parliament or not, and the court ruled that the Constitution bars a dual national from becoming a parliamentarian and also ruled that all the salaries and perks drawn by dual nationals should be recovered from the members of the Parliament.
But now the PTI government has passed legislation that entitles dual nationality holders for contesting the election.
The most controversial issue was of the missing persons and the CJP held proceedings in Quetta. The Frontier Constabulary (FC) high command had to face harsh moments. But as a result of these proceedings, a good number of missing persons started returning to their homes. Intelligence agencies that used to remain mum on this very sensitive issue also brought some of the missing persons before the court.
The NICL issue came up following the publication of a letter of the Transparency International, Justice Chaudhry took a Suo Motu notice of dubious purchases worth Rs5 billion by the National Insurance Company Limited (NICL). As a result of the proceedings, a large amount was recovered.
Reko Dick was another very controversial issue. It was worth $500 billion where Baluchistan's gold mines contracts were being thrown before multinationals for peanuts. Justice Chaudhry cancelled the illegal lease of the goldmines. However, the government had to face huge financial liabilities due to the judgment of an international court.
The most recent series of Suo Motu actions were taken by the Supreme Court was during the tenure of Chief Justice Saqib Nisar. He took over 70 Suo Motu actions in quick succession including the Tayyaba torture case, money laundering, fake bank account, mineral water companies' case, Zainab murder case, hospitals, tax suspension on mobile cards and population growth case.
There is a general feeling that the spate of Sou Motu actions led to injecting uncertainty and unpredictability in the judicial system of Pakistan. This was likely to get popularity among those who were benefitted by such interventions by the superior judiciary but it was hard to justify or qualify such adventurism as the laws and legal norms were concerned.
But Justice Nisar was not defensive on his Sou Motu initiatives saying: “I have only executed my duties; it is part of my job. I have not done any favours and don’t want any appreciation”.
It may be recalled that on January 11, 2018, Justice Nisar took Suo Motu notice of the rape and murder of minor girl Zainab in Kasur. Her body was found near a garbage dump days after she went missing. Later on, Imran Ali, a local of the area, was arrested and convicted of the crime and was sentenced to death by an anti-terrorism court. In October, he was hanged at Lahore’s Kot Lakhpat Jail.
The Chief Justice took Suo Motu notice of the massive increase in the population of the country. Two committees were formed and directed to come up with a uniform policy to tackle the issue within two weeks. He also said that “controlling Pakistan’s increasing population is a bigger issue for the nation than water scarcity”.
A Suo Motu notice was taken on the conditions of government hospitals in Lahore in January 2018. It led to the issuance of notices to 19 medical superintendents of government hospitals who were directed to submit reports regarding the availability of emergency machinery/equipment comprising of ventilators, oxygen, incubators OTs facility, angiography machines, CT scan, MRI, ambulances.
CJP Nisar took a Suo Motu notice on the high taxes charged on mobile recharge cards. On June 11, 2018, he suspended all taxes deducted by cellular companies on mobile phone recharge. The consumers were paying 42 percent tax, including 19.5 percent Federal Excise Duty, 12.5 percent withholding tax and 10 percent service/maintenance charges on every Rs100 card.
In November 2018, the Chief Justice took a Suo Motu case about the alleged exploitation of water resources by mineral water companies operating in the country. He said that the mineral water companies have dried up Lahore and Sheikhupura and sought data regarding the water usage by companies from the concerned departments. On January 12, 2019, the Supreme Court imposed a levy on companies selling mineral water and beverages at a rate of Re1 for every litre of surface water extracted by them.