Means to an end

For a Constitutional process which has such an expansive and far-reaching impact upon our current system of government, the suo motu procedure is shockingly under-developed as legal principles go. The 6th Edition of Black’s Law Dictionary – an authoritative legal glossary – does not even give the term a passing mention. Even Wikipedia (which has an 8000 word entry for the television show The Simpsons, including 237 citations) has only this to say: “Suo motu, meaning ‘on its own motion,’ is a Latin legal term, approximately equivalent to the term sua sponte. For example, it is used where a government agency acts on its own cognizance, as in ‘the Commission took suo motu control over the matter.’” (There are no citations).

The shockingly sparse amount of serious thought put into developing a legal basis for the suo motu procedure is reflective of the manner in which it is understood by legal practitioners – as a practical solution to a practical problem. Although suo motu was originally devised as a means of avoiding the barriers to entry which prevented access to justice for the most disadvantaged classes, however today, the basic legal ‘problem’ which the suo motu doctrine seeks to bypass is: how can legality be imposed when there is nobody who fits the legal criteria of an ‘aggrieved party’. The closely connected question of whether legality can or should be imposed in a scenario where there is no justiciable dispute between two parties is considered unimportant.

The provision of the Constitution on the basis of which the Supreme Court’s suo motu powers are said to be based, is Article 184(3) and it reads as follows: “Without prejudice to the provisions of Article 199, 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 Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said article.” It is, therefore obvious that suo motu powers are not derived from any ‘straight’ or ‘literal’ reading of the Constitution of Pakistan since most suo motu cases by the apex Court in the last few years rely upon a definition of Fundamental Rights and Public Importance which is so broad as to become meaningless from a legal perspective (this objection was, in a very rudimentary form, taken up by Malik Riaz prior to the disposal of the Family-gate Case).

The defense most commonly put forward by both lay-people and legal practitioners, in support of such a broad reading of Article 184(3), is that such discretionary powers are necessary where illegality has become so rampant and ingrained within the social and political structure. This line of reasoning is completely hopeless: not only is it a comical inversion of the much-discredited Doctrine of State Necessity, it carries with it the counter-intuitive assumption that bypassing legal procedure is the best possible method of implementing the law. It is, unfortunately and aggravatingly true, that legal procedure does in fact serve a very real purpose. The rule of ‘aggrieved party’ for example (referred to above), serves to ensure that the time of the court is effectively utilised in resolving actual disputes between litigants so as to prevent the Court from becoming a mere ‘talk-shop’ for ethics and morality, a purpose which can ultimately only be served by Parliament which is (unlike the Supreme Court) politically accountable for the decisions which it takes.

But rather than attacking suo moto on the basis of its legal reasoning, which is in any case inappropriate given its basis in practicality rather than law, perhaps it would be better to inquire what can be gained from it and what is lost.

Can it really be said that the three-year (and counting) crusade by the judiciary following reinstatement has had tangible practical benefits insofar as inculcation of the ‘Rule of Law’ are concerned? Do policy-makers, politicians and the friends and relatives of influential higher-ups appear more circumspect in their public dealings as a result? Does the recent disqualification of Yousuf Raza Gilani even have any bearing any more on the very real problem of corruption in the public sphere? Or is it perhaps, tragically, the case that the Supreme Court’s time could have been more well-spent focusing on the efficient resolution of the many thousands of cases of ordinary litigants which are still pending before Pakistani courts.

The writer is a lawyer practicing in Karachi.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.

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Comments (8) Closed

Saira jabeen
Jun 19, 2012 04:38pm
Supreme court is the new power source. Unfortunately in our country who ever has the power, becomes corrupt and tries to get absolute power thereby becoming absolutely corrupt.
Usman Masood
Jun 19, 2012 02:02pm
Depends on whether you want to go top-down or bottom-up... "many thousands of cases of ordinary litigants... still pending before Pakistani courts" is no excuse to condone the big fish... Besides, you're missing a development, since the CJ got back to his office, the pace of court proceedings - at all levels - has considerably paced up...
Jun 20, 2012 02:11am
Any short cut in procedures is not sustainable in the long-run and leads to chaos. Corruption is also a short cut when the system does not work - where one pays off to "get things done faster". The real solution is to cleanup enforcement of law, streamline procedures, etc. However, a culture that worships heroes, that is always waiting for someone to save the nation, that accepts dictators as saviors, is likely to support sou motos too.
Cyrus Howell
Jun 20, 2012 05:31am
"The shockingly sparse amount of serious thought put into developing a legal basis for the suo motu procedure is reflective of the manner in which it is understood by legal practitioners – as a practical solution to a practical problem." + Suo motu means the professional bureaucrats are left to run the government suo motu by changing their administrative rules into administrate laws - which have the force of law until challenged in the courts. It is simply a pragmatic way to solve administrative problems (hoping in some cases no one will notice they are being cheated). It would not be practical to vote on every administrative rule, but it does leave the fox guarding the hen house. I think suo motu might also mean "We must go to court because I haven't gotten my share of my share of eminent domain.
Cyrus Howell
Jun 20, 2012 05:36am
"It is a quite special secret pleasure how the people around us fail to realize what is really happening to them." -- Adolf Hitler
Jun 20, 2012 07:49am
Easy work is done thanks to CJ, Galani is gone but you must ask yourself now what ??????? It's a good start but many more should follow the faith of PM. Unless we get rid of majority of the corrupt politicians the suffering of Pakistan will not end. Energy crisis, unemployment, civil institution are all destroyed under Nawaz, Banazir, Musharrf and now Zardari. We need a strong leader. Seeing Bilwal next to Zardari makes me worry, a little boy trying to make name for himself just because his Bhutto/Zardari. What he has done for Pakistan? What is his qualification? These two Zardari’s along with a lot of other incompetent so called party leader deserve jail time and lifelong ban from entering politics for the rest of their life. Just look at the suffering of middle class and poor of Pakistan and compare it to political elite. Family run political parties are insult to the name of democracy, let get rid of them before the finish us off. Time for change is knocking at our door, thank you CJ please continue their should be no end to this. This process should continue to bring each of these corrupt politicians and ban them for life and take all the illegal money that they have stolen from the poor people of Pakistan.
Jun 20, 2012 08:06am
This supreme court takes only those cases that can keep them in the headlines. Fo the poor people of pakistan justice will always be delayed - for years. This is pure politics - thats how Iftikhar Chaudry came to power through Musharraf and when the political atmosphere was in his favour he denied him the second time - he is very clever - all of his decisions are to make the majority right wing conservatives happy. Pure and Clever Politics.
Jun 20, 2012 08:27am
True the judicial system needs a radial overhaul but as a practicing lawyer you should not decry 'doctrine of necessity'. In civilised societies governed by law, its politcal use may have demised but it exists - Gitmo and UK's control orders, or even election of current Parliament with heavily flawed electoral lists or PPP's defense of NRO are examples - but with good oversight, it is a useful valve when logical impasse is reached in legal or political terms. What else would you expect when the parliamentary talk-shop fails abysmally on the ethics and morality counter. Vacuum left by poor governance/executive, seeks filling from any other functioning pillar of a state. In the past, the khakis provided that fill and now the robes. One expects that the current situation is preferable to the historical one as in general it appears to be a reluctant assumption but atleast constitutional law is developing well. We can put the doctrine of necessity in a rest home (but not kill it) when lawyers have passion and loyalty to law - not loyalty to persons (be they CJs or political leaders) - i.e. rule of law not of lawyers!