An elephant in a mousehole

Those who have lived in Pakistan during the eras of former chief justices Iftikhar Chaudhry and Saqib Nisar are probably all too familiar with the term ‘suo motu’. It refers to the power of a court to take up matters at its own instance, without a party formally petitioning the court.

The first use of suo motu by our Supreme Court was in the Darshan Masih case in 1990. Several children who had managed to escape from bonded labour in brick kilns had written to the then chief justice of Pakistan, asking him to help them. The Supreme Court held that if a matter of public importance concerning the enforcement of fundamental rights was brought to its notice, it could decide the matter even in the absence of a formal petition before it.

Perhaps owing to its noble origins, there has not been a lot of serious discussion, especially within the Supreme Court itself, regarding the existence of such a power. Sure, there have been concerns regarding how the power has been exercised, and for good reason, but there has not been much debate on whether this power exists in the first place. I can think of four reasons why it does not (and should not).

First, nowhere in the constitution of Pakistan is such a power explicitly granted to the Supreme Court. Justice Antonin Scalia of the US Supreme Court once famously wrote that “Congress does not hide elephants in mouseholes”. This ‘elephants in mouseholes’ doctrine has since been used by US courts for the proposition that where parliament grants an institution or an individual broad-ranging power, it does so in explicit terms – terms from which the power can be derived without any broad interpretation of the law.

If an overbroad power requires an overbroad reading of the law, such a power does not exist to begin with. The suo-motu power, especially the way it has been exercised by our Supreme Court, is among the broadest conceivable powers a constitution can grant. Additionally, it is a power exercised not by elected representatives of the people, but by unelected judges.

Our Supreme Court has read such power into Article 184(3) of the constitution. Article 184(3) simply states that matters “of public importance with reference to the enforcement of any of the fundamental rights” can be heard by the Supreme Court directly, without first being referred to the high courts or any of the lower courts. Nowhere does it explicitly state that the Supreme Court can do so on its own motion.

Had the framers of our constitution intended to grant suo-motu powers to the Supreme Court, they would have done so in explicit terms, such as in Article 203(D), which grants the Federal Shariat Court the power to decide certain matters “of its own motion”. In deriving suo-motu powers from Article 184(3), the Supreme Court has, to paraphrase Justice Scalia, dug out an elephant from a mousehole.

Second, one of the most basic tenets of justice is that it must be done by an impartial, unbiased judge, one who decides the case purely on the basis of the law and facts, uninfluenced by any preconceived notions. But how does this principle apply when a court is hearing a case suo motu, especially when, as has been the case in our Supreme Court, the same judges who take suo moto notice of a matter also decide it?

For the Supreme Court to take up a matter suo motu, the court must have, at least on principle, made up its mind that this is a matter where the fundamental rights of the citizenry as a whole are being infringed. By definition, these are matters where a judge does indeed have a preconceived notion about the case. Thus, also by definition, these are matters where a judge’s ability to do justice impartially is hindered.

The third reason is the way these powers are exercised in Pakistan. A 2022 Supreme Court judgment had earlier held that only the chief justice of Pakistan could take suo-motu notice of a matter, without providing any guidelines on when this power is to be exercised. This, coupled with the chief justice’s power to decide which judge/bench heard a particular case, meant that a chief justice could (and did) first take suo-motu notice of an issue and then hear the matter himself along with judges of his own choosing.

This power was then used to construct dams, cancel contracts and strike down executive policies regarding which the Supreme Court had no particular expertise. These powers were sought to be regulated by the Supreme Court (Practice and Procedure) Act, 2023, which devolved the aforesaid powers of the chief justice to a committee of the three senior-most judges of the court.

But the Act has, at best, solved only half of the problem. First, it does not regulate ‘when’ suo-motu powers are to be exercised by the court, only ‘who’ can exercise them. This means that the Supreme Court can still merrily go about ordering the construction of dams, only that this would now require the nod of at least two judges instead of one. Second, it has placed no restriction on members of the committee from hearing their suo-motu cases themselves.

This lack of clarity regarding the manner in which suo-motu power is to be exercised means that the court often ends up perpetuating the very harm it seeks to rectify. The most glaring example of this is from early last year (2023), when, in a suo-motu case regarding elections in Punjab and Khyber Pakhtunkhwa (KP) within the constitutionally mandated 90-day time frame, four judges, claiming to be in the majority, held that suo-motu powers were not rightly exercised by the chief justice.

This decision (the infamous 4-3) was then used as a basis to deprive over half of Pakistan’s population of its right to vote and resulted in two of our provinces being run by illegal and unconstitutional governments for almost a year.

But perhaps the strongest case against the suo-motu power lies in the instances where it has not been exercised. One does not have to go very far in the past to find such an instance. Amongst the major decisions of the Supreme Court in the past couple of months, four are as follows: a dead prime minister has been declared to have been wrongly hanged; a dead dictator has been given the death sentence; the Supreme Judicial Council (SJC) has been given the go-ahead to proceed against retired judges, pursuant to which a judge who had already resigned has been declared to have been removed from office; and a judge who is already past his retirement age has been held to have been wrongly removed from office.

It is clear that the present Supreme Court is on a mission to atone for its past wrongs. And rightly so. By all objective standards, there have been many. But in doing all this, what is seemingly escaping the court’s attention are the sins being committed today.

Pakistan currently faces a constitutional and political crisis of near-unprecedented proportions, even when compared to our chequered past. The 2024 election is being called the most tainted election in our history; abductions of political opponents by the government have reached unprecedented levels; journalists who speak against regressive state policies are arrested and harassed at will; and citizens have been subjected to arrests and abductions simply for exercising their constitutional right to protest. But the justice system is looking at past issues.

To once again paraphrase – this time from a letter that forms the subject of the Supreme Court’s latest suo motu – “while declaratory relief can correct a wrong as a historical matter, there is a need to ensure that [the fundamental rights of the citizens of Pakistan] are upheld in real time”. Because what relief can you really give to a dead man?

The writer is a lawyer. He tweets/posts @aubhandari