The return of the suo motu

In this age of populism where we have convinced ourselves that the system is broken and we need a saviour to save us from ourselves, the return of suo motus is being welcomed with much cheer. The pendulum of judicial activism swung to one extreme under Chief Justice Iftikhar Chaudhry till it became excruciating to suffer, and ended with a whimper. The pendulum then swung back and the next few chief justices worked deliberately to return sobriety to the apex court. Is the pendulum swinging towards activism again?

Chief Justice Saqib Nisar has served with distinction as a judge for two decades. Any lawyer or court observer will tell you that the CJP and Justice Asif Khosa, the senior puisne judge, are amongst the brightest legal minds we have had on the bench. Justice Khosa will take over as CJP when Justice Nisar retires early next year. Given their jurisprudence, experience and clarity of mind, their control of the apex court brought along great expectations. It would be a shame if all we see under their watch is a repeat of the Iftikhar Chaudhry model.

As a judge, the incumbent CJP remained critical of the unstructured exercise of the SC’s 184(3) powers. Having been a civil lawyer par excellence, he argued that just as enlargement of writ jurisdiction rendered district courts ineffectual, unwieldy expansion of 184(3) jurisdiction could morph the valuable role played by high courts. There are neither any rules nor any judicially determined test to regulate the vast 184(3) powers. While the prime purpose of the apex court is to inject certainty into law, excessive reliance on 184(3) does the opposite.

Since being elevated to this most revered office, the CJP has publicly anguished over the broken justice system that the SC sits atop, acknowledged the responsibility he shoulders to make amends and has vowed to make his time count. Being not a rhetorician or demagogue, but a thinking mind with a lifetime of realist jurisprudence preserving law and legal structures, it makes no sense that the CJP would spend the last year of his career undoing most of it. How can it then be fathomable that the SC’s current overdrive is without a method?

Let us consider justifications of suo-motu driven judicial activism. The first (and the weakest) is the vacuum theory: the failure of executive and legislature creates a vacuum that needs to be filled, as nature abhors vacuums. This can be an explanation for praetorianism disrupting our constitutional scheme of separation of powers, but not one for judicial activism. Judiciary, as a pillar of our constitutional scheme, derives authority from the constitution and is bound by it. It can only dispense justice according to the law and not at its whim.

There has been extensive debate amongst jurists regarding the character of courts. Are they courts of law or courts of justice? The distinction is that a court of law produces justice in accordance with the law. A court of justice on the other hand can deliver as justice whatever individual judges deem fit, guided by personal morality and unconstrained by the law. This doesn’t fit within a constitutional scheme where a written constitution determines the scope of authority of all institutions. But in a populist society this is legalese no one cares about.

The second justification is rooted in our need for saviours. We are told that the sky is about to cave in and necessity demands that someone rise up and hold it together. And it is in the interest of rule of law that the judiciary – and not the khakis – emerges as that saviour. This is what populism does. It creates heroes and villains devoid of causation and logic. A few years back after the APS attack, the military was the hero and the judiciary the villain. Military courts were justified due to the judiciary’s failure to do its job. Now we want the judiciary to save everyone else.

The related questions are these. When the SC exercises 184(3) powers in relation to the Sindh High Court’s decision in Shahzeb’s case, is it saving us from high courts? When it exercises suo-motu powers in relation to Khadija’s case, is it saving us from district courts? When it assumes jurisdiction over Zainab and Asma’s rape and murder cases, is it saving us from the criminal justice system? In a country of 208 million where a majority must interface with regular institutional structures (police, courts etc), how many can the SC save with its suo motus?

The third (and most depressing) justification is the justice-as-catharsis model ie creating hope is the be-all and end-all amidst an all round meltdown. Its starting point is that the system is broken beyond repair and even the SC with its vast constitutional powers can’t fix it. All it can do is provide cathartic relief to an angry society, which is what happens when it summons high public officials and bends their ears. Is it possible that the executive faces the same constraints fixing governance structures that the judiciary faces fixing courts?

The problem with suo-motu mode of justice is that it can highlight issues but not fix them. When the SC takes notice of an issue, everyone stands up to pay attention at first. But when public officials are howled down in courts and strictures passed against them make TV headlines day-in and day-out, the extraordinary becomes the new normal and eventually the mundane. We experienced this during the Iftikhar Chaudhry era. Scandals were exposed, cases registered, power-wielders chided. But the sum total of sustainable change was naught.

The reign of suo motu also sucks life and initiative out of regular courts. When the SC becomes the court of first instance, all aggrieved persons want to go directly to the SC. A system where whatever catches the eye of the CJP becomes a priority and is treated accordingly and everything else just lumbers along, is arbitrary by definition. It also doesn’t sit well with Article 10A’s due process guarantee. When the SC is itself the complainant how can it simultaneously be a neutral arbiter in the matter? And anyone who falls on its wrong side has no right to appeal.

Suo motus concentrate power in the office of the CJP and their exercise throws momentum behind the SC’s words and actions. What this power and momentum is used for depends on the incumbent. Iftikhar Chaudhry’s suo motus placed the SC at the centre of the power equation and he revelled in the unbridled authority and attention it brought. Sycophants applauded the suo motus while he was in office. But dispassionate assessment of his performance after he retired highlighted the tremendous opportunity to reform the justice system that he fettered away.

The SC once again has everyone’s attention. The flurry of suo motus one year into the CJP’s tenure is shaking state institutions out of slumber. While shakeups, strictures and outrage heat things up to a point where the status quo becomes uncomfortable, they can’t provoke constructive change on their own. If outrage is all they cultivate and address, the net effect is growth of cynicism and despair – not change. But if the outrage and unease with how things are can be channelled towards across-the-board reform, suo motus could play a constructive role.

The CJP has promised to breathe life back into the Law Commission and National Judicial Policy Making Committee in order to fix our broken justice system. Suo motus have again highlighted how components of our criminal justice system (watch and ward, investigation, prosecution, courts and prisons) are malfunctioning across provinces and how regulatory structures meant to ensure appropriate standards of food, health and education are dysfunctional. He has met with the chairman of Senate to discuss legislative ideas for reform.

If the CJP and SC can now shift gears and bring institutions together to push for sustainable reform, the suo motus will have served a critical purpose. Let’s hope the flurry of the SC’s activity is thought-through and reform-oriented.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu