Back to the suo motu

The chief justice of Pakistan took suo-motu cognizance of the PTI regime’s response to Covid-19; critical remarks against Health Adviser to the PM Dr Zafar Mirza ran on a loop for days. But this wasn’t well received for three reasons.

One, it brought back haunting memories from the tenures of CJPs Iftikhar Chaudhry and Saqib Nisar who used suo-motu powers to usurp executive authority and subjected those appearing before the SC to ridicule while aggrandizing personal power. Two, with the perch of populism already occupied by the PTI regime, there is no public space for a populist court at this time. And three, with a decade of judicial overreach with no visible benefit accruing to the people in whose name the power is exercised, the need to structure suo-motu power is writ large.

It is not that the government's response to Covid-19 has been stellar and there is no room for criticism. It is just that judicial intervention promises no dividends. The world is in a truly unprecedented policy space. There are no clear answers. The executive must be afforded wriggle room to formulate policy in the face of evolving facts, and tweak policy choices it makes. If it gets things wrong, there will be time for political accountability. Judges too might be unhappy with the executive’s policy choices like some of us. But exercise of judicial powers to vent can be disruptive.

Aitzaz Ahsan (who led the movement for the restoration of judges) spoke against the Covid-19 suo motu – wisely, candidly and timely. The bar leadership was a big disappointment during CJP Saqib Nisar’s reign of suo motus. CJP Nisar turned out to be an unforgiving judge who didn’t take kindly to criticism. So lawyers mostly kept mum publicly while privately deprecating the abuse of authority, as we don’t like losing briefs. In CJP Nisar’s heyday, to avoid harsh treatment in Court No 1, some kept away, some acquiesced and many weaseled along.

But CJPs Chaudhry and Nisar did tremendous damage to the majesty of law, to certainty as an ideal of rule of law, to the idea of judges being neutral arbiters of the law and to basic civility during judicial proceedings. Their imperious ways hurt the trichotomy of power in Pakistan, public support for elected institutions and democracy, our jurisprudence and economy. And all this time the bar played no effective role against judicial overreach. In this backdrop and our entrenched culture of sycophancy, it is reassuring to see Aitzaz Ahsan speak his mind.

Article 184(3) vests powers in the SC. Why then do they end up being driven by an incumbent CJP’s beliefs, interests or whims? Post-Chaudhry, the tenures of CJPs Tassadaq Jillani and Nasir-ul-Mulk were periods of blissful sanity. CJP Jamali didn’t employ suo motu much. But when he did it mostly had to do with things around his hometown. Then came CJP Nisar and all hell broke loose. Under CJP Khosa sobriety again returned to the SC. Should matters of public importance requiring the SC’s intervention appear and disappear based on a CJP’s proclivities?

Early in their terms as SC judges, Justices Nisar and Khosa were both opposed to arbitrary use of suo-motu powers. CJP Chaudhry had elevated them to the SC instead of letting them have their turns as CJs of the Lahore High Court, where he wanted to retain a loyalist. Justice Nisar would happily narrate how he spoke against the use of suo motu; in administrative meetings CJP Chaudhry counseled younger judges to consider the time they’d be CJP and such power would be handy. Given CJP Nisar’s use of the suo motu, CJP Chaudhry’s counsel seems almost prophetic.

CJP Nisar announced during the new judicial year ceremony in 2018 that the issue of scope and manner of exercise of 184(3) powers would be taken up by the SC on the judicial side. The issue was supposedly raised in an administrative meeting by some SC judges (just as Justices Nisar and Khosa did earlier in their term). To avoid fetters on suo-motu powers through exercise of the SC’s rule-making power, CJP Nisar kicked it towards the judicial side. But while continuing to use suo-motu powers, he never formed a bench to determine the contours of 184(3).

After CJP Nisar, CJP Khosa was resolute in not exercising suo-motu powers in his term. There were many occasions when suo-motu enthusiasts egged him on and tried to shame him for being oblivious to matters of public importance. He didn’t blink. And the SC went back to being the august forum where judges spoke through judgments instead of populist antics and brusque remarks (during hearings that humiliated people) that made headlines. The SC’s focus rightly shifted from trying to reform everyone else to trying to reform the criminal justice system and the courts.

CJP Khosa remained a supporter of structuring 184(3) powers. During his time, draft rules were put together based on sound principles. That 184(3) vests an institutional power in the SC and the manner of its exercise must reflect the same. It must not be the handmaiden of an incumbent CJP. The exercise of suo-motu powers must not undermine the basic principle of equity that no one can be a judge in his/her own cause. Thus, the power must be structured such that a judge identifying the need for its exercise must not be one sitting in judgment over how it is exercised.

Further, no court is infallible. As the apex court, the SC corrects errors made by lower courts. But when it exercises original suo-motu jurisdiction, the room for error still exists – except that there is no forum that can correct such errors. Thus, there must be provision for an intra-court appeal. It is the CJP’s prerogative to determine the constitution of benches. But given the provision for appeal, a CJP wouldn’t want junior judges to sit over his judgment and would like to be part of the appeal bench and thus one-step removed from the initial exercise of 184(3).

Jurisprudence on good governance produced by our SC mandates structuring executive discretion, wider distribution of power to prevent abuse, and transparency as a tool to promote accountability. But when it comes to the administrative powers of courts themselves, the manner of their exercise is opaque at best. So we don’t know what became of draft rules meant to regulate suo-motu powers. Are they pending before a committee? Will they be framed anytime soon? Or has the idea of structuring 184(3) been silently discarded?

The case for the structuring and regulation of 184(3) powers is rock solid and articulated innumerable times. But now is an opportune time to do the needful for two reasons. One, after a decade of experience with suo-motu powers one can safely say that its net benefit has been close to zero. None of the high-profile suo-motu cases led to sustainable reform of structures of governance or accountability of individuals shamed by the SC. There have been no convictions in cases where the SC acted as complainant and effectively framed charges – for eg the Haj Corruption case.

The Saqib Nisar suo motus are still fresh in memory. Advertisements for the Dam Fund are probably still continuing. What became of the initiative? Will anyone be held to account for the misguided initiative that experts continued to warn against, as public infrastructure projects of such magnitude can’t be crowd-funded? Has our water problem been solved? Did Justice Saqib Nisar’s suo-motu-on-the-wheels and hospital inspections fix our public health infrastructure? Who will be held to account for tearing apart the wonderful initiative that the PKLI once was?

And two, there is no partisan issue at the moment that can be used to deflect the need for structuring suo-motu powers (by calling its advocates cronies of such-and-such party or apologists for the corrupt). There is no support across the political spectrum for use of suo-motu or judicial derision to cut the PTI regime to size, notwithstanding its incompetence and even though the PTI itself was the biggest advocate and beneficiary of the suo-motu overdrive. Suo motus must be regulated in the interest of the trichotomy of power, legal certainty, due process and fair trial.

The refusal to regulate suo-motu powers is simply about power. It isn’t about judicial independence or protecting the institution against evil. At best, it is about the belief of judges in line to become CJP that they will exercise unchecked power for the greater good of the people. But history teaches us that self-righteousness often leads to entrenchment of excessive power and then its abuse. Our SC comprises the CJP and at least six other judges in line to become the CJP. Reform of suo-motu power is a litmus test of their commitment to doing the right thing.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu