ISLAMABAD: Chief Justice of Pakistan Mian Saqib Nisar on Friday expressed his intention to examine and determine the scope and jurisdiction of the Supreme Court under Article 184(3) of the Constitution that empowers the court to intervene in order to enforce fundamental rights.

The chief justice as head of a three-judge Supreme Court bench had taken up a case relating to the scope of the article that also allows the court to initiate suo motu proceedings on violations of the law.

Editorial: Overuse of suo motu

While pointing towards Attorney General Anwar Mansoor, Chief Justice Nisar said: “The court wants to know, is it exceeding or crossing jurisdiction with respect to Article 184(3) or not.”

Senior lawyer says case should be heard by full court

Article 184(3) of the Constitution says: “With­out prejudice to the provisions of Article 199, the Supreme Court..., if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Cha­pter I of Part II is involved, has the power to make an order of the nature mentioned.”

The bench also indicated that two senior lawyers would be appointed to assist the court and notices would be issued to the attorney general, the Pakistan Bar Council (PBC) and the Supreme Court Bar Association. The date for the next hearing would be decided later.

Soon after the hearing, senior counsel Raheel Kamran Sheikh wrote a letter to PBC’s vice-chairman, Kamran Murtaza, and its other members that the bar was also looking into the matter.

The frequent use of suo motu powers during the period when Iftikhar Muhammad Chaudhry was the chief justice of Pakistan had been criticised by many lawyers who emphasised the need to determine the limits of or constraints to the provision so that judiciary’s credibility was not adversely affected.

Many lawyers were of the view that excessive use of Article 184(3) of the Constitution under the public interest litigation sometimes served to seal the fate of the aggrieved party, especially when an entirely different issue cropped up in collateral proceedings and totally a different aspect was brought to the notice of the court.

In his letter Mr Sheikh said he was surprised to see that Chief Justice Nisar, who had thoroughly enjoyed exercising the powers relating to Article 184(3) and expanded its scope by an unprecedented level, was now undertaking the exercise to determine its limits just four months before his retirement.

However, it was not too late to regulate a power that had the potential to distort, paralyse or even take over other systems in the country, the letter said.

“Be it judicialisation of politics or economics or art and culture, PBC must play its due role to safeguard against such unwarranted interventions,” Mr Sheikh said, adding that while regulating the exercise of one of the most important jurisdictions unnecessary restrictions that might render the apex court toothless as compared to the other organs of state and society should also be deemed unacceptable.

Given the importance and sensitivity of such an exercise, he said, the PBC should demand that the case be heard by the full court. In this regard the position to be taken by the apex bar in court should be discussed and resolved before hand.

A full court hearing, he said, would be greatly beneficial because through it contribution could be made to the debate at hand by all judges of the Supreme Court, including its future chief justices, who would be serving till 2030.

In November of 2016, the federal government tabled the 24th constitution amendment in parliament to propose right of appeal against decisions issued on a suo motu. But the bill is still pending in parliament.

The amendment moved in parliament had suggested changes to Article 184 (Original Jurisdiction of the Supreme Court) by adding two clauses (4 and 5) to it to give the constitutional right of appeal to an aggrieved party against judgements of the apex court in suo motu cases in line with the principle of fundamental rights of citizens.

In 2011, the International Commission of Jurists had also suggested that the top court should exercise restrain while initiating suo motu cases.

Published in Dawn, September 8th, 2018