Suo motu refers to the judge taking action without being requested to do so by any party or person. It is a Latin term that can be roughly translated to “of its own motion.” The term sua sponte has a similar meaning. The term is typically used to describe action taken by a judge without a formal motion or request from any party.

Courts are the judicial branch of the government. They do not usually act on their own initiative. They exercise their jurisdiction only when a dispute is brought before them by the parties involved. The existence of a dispute is usually an essential precondition for taking cognizance. In suo motu cases, however, the court initiates proceedings.

In Pakistan, the Supreme Court has the power to initiate suo motu action, but this power is not unbridled. It is allowed only in matters of public importance and violations of fundamental rights. In exercise of suo motu jurisdiction, the Supreme Court of Pakistan registers matters of public importance under Section 184(3) of the constitution.

Article 184(3) also provides a check on the exercise of such powers. Before exercising suo motu jurisdiction, the Supreme Court must satisfy itself that the matter is one of public importance and identify the violation of fundamental rights that need protection and enforcement. Guidance on these principles can be sought from the following judgments.

In the famous suo motu case of Islamabad Rawalpindi sit-in, the Supreme Court of Pakistan identified violations of Articles 9, 10A, 14(1), 15, 18, 23 and 25A of the constitution, leading to the initiation of suo motu action (PLD 2019 SC 318). It explained the question of public importance in the case of Manzoor Elahi versus the Federation of Pakistan i. (PLD 1975 SC 66). To date, this definition of public importance has been consistently followed by the Supreme Court.

Furthermore, as per the mandate laid down by Article 184(3), it is the Supreme Court that exercises suo motu powers. Article 176 of the constitution defines the Supreme Court as the chief justice of Pakistan and other judges of the Supreme Court. A combined reading of Article 184(3) and Article 176 shows that the Chief Justice of Pakistan and other judges of the Supreme Court can take suo motu action.

In the dispensation and administration of justice, the power of the chief justice of Pakistan and the other judges of the Supreme Court is equal. Some exceptions are provided by the Supreme Court Rules 1980 concerning the constitution of benches by the chief justice of Pakistan. Under the doctrine of pater familiae, the chief justice of Pakistan is considered the first among equals in the exercise of their functions and duties.

The exercise of suo motu jurisdiction is supported by the doctrine of judicial activism. However, the principle of judicial self-restraint limits the exercise by arguing that suo motu action shall only be taken in cases of violation of fundamental rights or when a question of public importance is involved.

The Supreme Court has wide powers under Article 184(3) to oversee the acts of other organs of the state, namely the Executive and the Legislature (Reference: PLD 2013 SC 641). For example, the chief justice of Pakistan, on the recommendation of 12 judges of the Supreme Court of Pakistan, assumed suo motu jurisdiction and constituted a five-judge bench that declared the dissolution of the National Assembly and the action of the deputy speaker during the controversial no-confidence motion last year unconstitutional. As a result, the National Assembly was restored (PLD 2022 SC 574).

The exercise of suo motu jurisdiction is supported by the doctrine of judicial activism. However, the principle of judicial self-restraint limits the said doctrine.

In Benazir Bhutto Case, it was held that Article 184(3) provided direct access to the highest judicial forum in the country for the enforcement of fundamental rights. It provides an expeditious and effective remedy for the protection of fundamental rights from interference by the Executive and the Legislature. The court has wide discretion in providing an appropriate order or direction, including a declaratory order, to suit the particular situation. The declaration of fundamental rights is meaningless unless there is an effective machinery for their enforcement. (PLD 1988 SC 412.)

Furthermore, any member of the public with sufficient interest can maintain an action for judicial redress of public injury arising from a breach of public duty or violation of some provision of the constitution or law, and for the enforcement of such public duty and observance of such constitutional provisions. The Supreme Court can take cognizance of any matter involving a question of public importance concerning any of the fundamental rights - even suo motu without any formal application. (PLD 2006 SC 697.)

In suo motu Case No 4 of 2021, the power of taking suo motu action by the Supreme Court of Pakistan was regulated through a four-member bench. The bench held that suo motu jurisdiction could only be invoked by the chief justice of Pakistan. It could also be invoked at the request or recommendation of a bench of the Supreme Court. In short, the power of taking suo motu action has been confined to the discretion of the chief justice of Pakistan as established in PLD 2022 SC 306.

The Supreme Court Practice and Procedure Bill 2023 has been passed by a joint session of the parliament for the second time to regulate the suo motu power of the Supreme Court. The bill is now pending before the president for his assent and in ten days will automatically become an Act of the parliament. However, the validity of the said Bill has been challenged before the Supreme Court and is pending adjudication. The operation of the bill has been suspended, apparently contrary to the principle laid down in PLD 1989 SC 61.

Under Section 3 of the said bill, before taking suo motu action, the matter shall be placed before a committee consisting of the chief justice of Pakistan and the two most senior judges of the Supreme Court in the order of seniority. If the committee is of the view that a question of public importance is involved with the enforcement of fundamental rights, then the matter shall be heard by a bench of not less than three judges, including members of the committee. An appeal against the order of the said bench shall be filed within 30 days before a larger bench of the Supreme Court and shall be fixed within 14 days.

The Supreme Court Practice and Procedure Bill 2023 has been a long-awaited legislation. It provides a remedy to the aggrieved person/ party to mitigate the harm to the litigants. This is because in such cases the Supreme Court is the court of first and last instances, and no right of appeal has been provided for previously under the suo motu jurisdiction.

It has been argued that the Act will cut litigation delays. Currently, there are more than 50,000 pending cases in the Supreme Court of Pakistan.

The writer is an advocate of the Supreme Court of Pakistan based in Peshawar. He has an LLM in constitutional law