01 August, 2014 / Shawwal 4, 1435

Suo Motu: Pakistan’s chemotherapy?

Published Aug 31, 2011 01:34pm

The Atiqa Odho case resulted in many critiques against the court’s action. – Dawn File Photo

Chemotherapy is a treatment used in medicine to cure the body of deadly cancerous tumors: it functions like a poison that can kill off the body if used excessively but can also cure the body if implemented correctly. The use of suo motu by the Supreme Court of Pakistan, where a judge accepts a case on its initiative, is much like chemotherapy.

The use of suo motu judicial review by the court has helped to shed light on issues left untouched by the elected branches, and thus treats the nation’s cancers. However, without a method to determine when it is proper to use this judicial tool, suo motu could “poison the system,” by politicising the court and creating rifts between the branches of government.

The use of suo motu is an anomaly to the South Asian subcontinent, with India and Pakistan having constitutional provisions allowing the court to exercise jurisdiction even when the technical requirements for a case have not been satisfied.

Under Chief Justice Iftikhar Muhammad Chaudhry, the court has relied on its constitutional right to take suo motu action. In Article 184 (3) of Pakistan’s Constitution, the Supreme Court is allowed to take suo motu action whenever there is a possible violation of fundamental rights enumerated in Chapters 1 and 2. Thus, the court has initiated several cases based on news stories that appeared in the print or electronic media or letters sent to the court by common citizens. Though a news story or a citizen letter does not fulfill the legal requirements of filing a plea with the court, the Court has been willing to take action.

Justice Shri V. R. Krishna Iyer of the Indian Supreme Court stated that such judicial activism shows that “the true strength and stability of our polity is the society’s credibility in social justice, not perfect ‘legalese’”.

The speedy and public trial of the Rangers who shot and killed Sarfraz Shah on videotape in Karachi is a prime example of the positive use of suo motu by the court. By most accounts, the commanding officers in this instance attempted to avoid prosecuting the murderous Rangers and concealed evidence of the heinous crime. Had the Supreme Court not exercised its suo motu powers, Mr. Shah’s killer would continue to roam the streets with the ability to repeat his cowardly act on another civilian.

The second positive example of the use of suo motu came in 2006 when the court attempted to address the problem of missing persons in Balochistan. The court acted to preserve the right of habeas corpus guaranteed by the Pakistani constitution which states that an individual who is arrested by a state actor must be presented publicly and told the allegations against him. Though the Court threatened to awaken the beast of the Army, who had long-maintained a policy of extrajudicial action against civilians, this use of suo motu is a medicine for the cancer of Army-inflicted human rights abuses.

Justice Khawaja Muhammad Sharif defended the use of suo motu by stating he “will take notice of every matter in which the executive is showing slackness.” As Saroop Ijaz, renowned legal commentator, states, “such a presumption that suo motu can be used to remedy inaction by elected officials exposes some of the negative characteristics of judicial activism.”

The use of suo motu is a game-changing feature to the balance of powers between the Parliament, Supreme Court, and the President’s office. However, if the practice is overused, it could cause an all out rebellion and refusal by elected officials to enact the decisions of the Court. This would be devastating to the credibility of the institution and render it as powerless as during the days of dictatorial rule. In fact, some have argued that the recent spate of judicial activism has led to several instances where the judicial branch and executive were so conflicted that there was no effect of the Supreme Court’s decisions.

Furthermore, by continually acting on issues where the executive branch has not yet taken action, the Court could foster a dependant relationship between itself and the President. This could be damaging not only by inundating the court with political decisions it is unequipped to make, and by weakening the willingness of the Executive to be proactive in their approach to running the affairs of the nation.

There is also an issue with the randomness by which the court has recently exercised its suo motu powers. One anomalous case that has resulted in many critiques against the Court was the decision to take notice of the detention of Atiqa Odho when she was found to have been in possession of alcohol. This judicial action exposed a serious question that must be asked: is there any system or legal logic the court utilises to determine when they may exercise suo motu?

It is up to the court to determine what rights should be protected by their use of suo motu but what is far important is how those rights will be protected. If the court acts without a method to pass along to future jurists, it threatens creating chaos. If suo motu is overused, it could alienate the army and elected branches to the point of open defiance. And finally, just as the Supreme Court needs time to develop itself, the executive branch should be given enough leeway to take actions independent of judicial decree.

However, if the court allows judicial formalism to stand in the way of taking immediate action, the cancers of Pakistan could kill the country. The court could successfully cure many of the nation’s cancers only by taking a deliberate approach to addressing injustices in its society through a legal framework that respects the balance of power and can be expanded on by jurists to come.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.

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Comments (23) (Closed)


saad
Aug 31, 2011 07:21pm
The suo moto, amongst other things, can be justified simply because the perpetrator was carrying extremely expensive( and illegal) liquor at a price enough to feed a flood or earquake affected family for a few weeks. Moreover, that sense of entitlement enjoyed by the uber rich socialites was challenged by the court at the behest of the spiritual values of a 180 million people, whom these politico- socialites claim to represent anyway. Great nations uphold the law at all costs, notwithstanding personal wealth or enticing looks.
mehmoona
Aug 31, 2011 07:48pm
the courts with their new found freedom and power are in danger of misusing it ,like everything else in our country it has the danger of evolving into another institutional mafia.....therefore it too needs checks and balances....as nothing corrupts more than absolute power
Masood Haider
Aug 31, 2011 09:29pm
Several such actions taken by the supreme court including the one cited by the author point to the fact that the judiciary far from being fair and impartial is beholden to those who helped restore the CJ through use of tactics which can only be characterized as unsavory.
tanveer
Aug 31, 2011 10:25pm
The personalty in question is pretty but justice is blind.
Asghar
Sep 01, 2011 12:31am
Justice delayed is Justice Denied! Problem is not suo moto but the problem is that there is no verdict at the end. Most of the cases were like media trails but without a verdict. There were more than 110 suo moto cases, so far only 3 have been decided.
Kashif Raees
Sep 01, 2011 02:06am
In current scenerio in pakistan , Judicial activeism is imperative , but we have seen the response of government in judicial action, executive does not seem serious for the implementation of judicial orders.
kaser
Sep 01, 2011 03:53am
What else the judges can do in a society like pakistan where government machinery does not perform it's duties properly, which is inefficient, incapable and corrupt. The excessive inclination of judges to take suo motou shows how the system is fastly collapsing in pakistan and people are loosing confidence in the state.
MUNIR SIDDIQI
Sep 01, 2011 05:58am
With due regard to the sincerity of the Suprem Court, the general impression is created among public that it has off late used this option rather excessively. Some says that if court becomes so interesting and inthusiastic in a particular matter it becomes a party to the issue, thus damaging the credibility of the judiciary.
jonny
Sep 01, 2011 09:05am
agree with saad - miss odho, the law is the same for everyone - a violation of these laws should result in action by the courts - sorry, but you are just as equal as anyone else in pakistan
Nadeem
Sep 01, 2011 09:38am
Ms Odho has been an ardent supporter and fan of a man who treated the law as his bathroom mat, namely General Musharraf. About time she got a lesson in law - suo moto or not.
Shakeel GHOURI
Sep 01, 2011 09:47am
suo motu process is essential in a country like pakistan where the inability of different departments is increasing rapidly owing to political affiliation. It appears to ensure the provision of justice to the common people. As, it is true that judiciary seems to be sincere on the major national issues so it should have the right to deal with them properly, but it is equally true that exceeding intervention of it can rule out the importance of other departments. so their must be a legal logic which describe the circle of power of judiciary in which it can act upon various issues that remain untouched by other quarters. otherwise, similar to chemotherapy its excessive or unidentified use can prove itself ‘worthless’ or even worse rather than beneficial or purposeful for the well-being of country.
Jais Raj
Sep 01, 2011 09:51am
What other option do you have? At least to provide justice to those who are not able to knock the powerful doors of the executives made to hide "crimes" in this country. Suo motu is the best remedy for everyday surfacing cancers of this country. Shameless are those cowards who cannot implement or get court orders implemented. When ministers publicly tell lies when hunger is forcing people to commit suicide history looks in the eyes of justice system.
anis khan
Sep 01, 2011 10:38am
how many notice so far taken against punjab govt?
Rizwan
Sep 01, 2011 11:02am
Nice! To address the importance of the Law...........
Hasan
Sep 01, 2011 11:58am
Why readers and articles are always critical of Punjab government and events happening in Punjab. The Salman Taseer murder was dubbed as the failure of the Punjab government while Karachi killings were just blamed on some hoodlums rather than the Sindh government administration?. What about the KPK, Balochistan and Sindh governments who are far worse than Punjab Government in terms of administration and funds embezzlements.
Radiant Reader
Sep 01, 2011 12:02pm
Being chivalrous and coming to the aid the damsel in distress is all very good but the author is not clear about issue. The suo motu was due to the officials at the airport allowing her to go without pressing the charges at the behest of her influential friends. She could have saved everyone a lot of trouble if she had called her friends in high places before embarking on her journey and not after she was found in possession of the illegal stuff. She should have known better that the whole system is rotten and without greasing the palms of the officials at the airport it was highly unlikely to pull this one off. Trying to ridicule and malign the higher courts is actually in bad taste and not the suo motu by them.
mehmoona
Sep 01, 2011 01:24pm
I disagree one cant equate revenge with justice...what you are supporting is the former.... revenge leads to anarchy while justice instills stability
shafiq
Sep 01, 2011 02:00pm
Are you suggesting that well connected people should not be subject to the law of the land ? If it is a crime, and those, who choose not to comply, need to be brought to justice. If all else fails, then the suo moto is the answer to tell the "elected branch" that they are failing. What is wrong with that?
Mohsin Khan
Sep 01, 2011 03:14pm
Ms Odho is an influential person through association with more influential people. People in this close knit circle should not be allowed to get away with breaking the law. Setting examples of these people is essential if equality of justice is to be established in Pakistan. These people tend not to get caught for bigger crimes, so when they are caught they should be pursued.
Agha Ata
Sep 01, 2011 06:54pm
If this is not the time to exercise suo motu power, then when? Is anything else working?
Waseem
Sep 01, 2011 07:17pm
More like impotence of law
MGAKHI
Sep 02, 2011 07:05am
Well, can you please let me know, Did Any of the Judges including our Chief Justice has taken suo muto action for justice on behalf of poor people, can you cite any case? If justice cannot be provided for the POOR then Suo Muto action is wasted.
M.Asghar
Sep 06, 2011 02:02pm
If the Apex Court with its arm of suo motu motion were not there, the country would have been devoured by the hoards of feudal mafia. Thank goodness, we have this judicial instrument in our hands.