The Suo Motu’s Integrity Problem

A version of this essay was published in https://dissenttoday.net/ on March 29, 2023 as a part of a series of articles titled ‘Pakistan: Is there a way forward?’

Any path forward for Pakistan must have as its eventual destination the rule of law and democracy. While these concepts often elude easy definition, there are some broad ideas about them that we can all agree on.

A system that adheres to the rule of law requires decisions to be made based on objective principles, free from arbitrariness, where like cases are treated alike. For the law to rule, a single individual cannot have absolute discretion.

Democracy at its core is about people having a voice in the decisions that impact their lives. Tied with this is the concept of accountability of public officers through the exercise of the vote.

Every institution of state must respect and aspire to these principles. It is therefore necessary that as an institution the Supreme Court of Pakistan not only ensure that every organ of the state be held accountable for any deviation from these principles, but that it also holds itself to the same standards.

My argument is that the Supreme Court’s power to take suo motu notice, as it is currently practiced, is difficult to justify from either a rule of law perspective, or, from the standards of democratic governance. And for this reason, I think it is time we gave serious consideration to arguments concerning the merits of judicial restraint and a reform of the powers of the Chief Justice of Pakistan.

The Anomaly

In a constitutional system, no court can exercise jurisdiction not specifically granted to it under the law. For a case to be heard directly by the Supreme Court (in its original jurisdiction) the conditions outlined in Article 184 (3) must be fulfilled. The case must relate to a matter of public importance and involve a violation of the fundamental rights guaranteed under the Constitution.

From the date that the 1973 Constitution was framed and leading up to the 1990s this power was always understood by the Supreme Court to mean that an actual case needed to be filed before it that met the criteria of Article 184 (3). There was never an understanding that the Chief Justice of Pakistan, could create a case by himself based on a news headline, letter, or his own views about the country’s situation. This novelty would come about nearly two decades after the Constitution was enacted.

The power was created through judicial activism. It has no basis in the text of the Constitution. The court itself didn’t even mention this power when it was framing the Supreme Court Rules in 1980. Despite this, it would eventually establish a precedent that gave the Chief Justice the power to take up matters of public importance which could violate fundamental rights of his own volition.

While there is precedent regarding how the ambiguous terms in 184 (3) are to be interpreted, recent history has demonstrated that what is a matter of public importance depends largely on the views of the Chief Justice of Pakistan. For some it has been privatization, for others disqualification of politicians. Matters of public importance for the country change as fast as the Chief Justice.

As for fundamental rights, the period spanning from Iftikhar Chaudhry to Saqib Nisar has shown us that if a judge feels strongly enough about an issue, he will interpret a fundamental right so expansively as to justify a foray into making policy. As Saqib Nisar did with the right to life. Using it to justify his project of fixing Pakistan’s water woes.

A summary of our current state is this: the Chief Justice of Pakistan can take up any matter that he, as the sole judge, feels is of public importance and frame a policy that is to be imposed on a country of over 220 million people. This is an untenable position in a democracy.

The Suo Motu in a democracy

The exercise of the suo motu power in this way undermines democratic decision making. By using it to frame policy, the Supreme Court routinely acts beyond the scope of its judicial function. To act as both executive and legislature. Economic expert and social scientist. The separation of powers, an essential accountability mechanism in a democracy, is swept aside.

In one of the most infamous examples in recent memory, Chief Justice Saqib Nisar decided that Pakistan needed to build another dam. Our country’s policy on water management and the use of natural resources should not be decided by any single individual. That amount of power in the hands of one person is by itself problematic. It is aggravated when that person is neither elected nor an expert on the issue. Their decisions don’t just end up being technically ignorant but also suffering from a lack of democratic legitimacy.

Decisions on policy, whether on public health or the economy, are supposed to be made by elected representatives. The Constitution of Pakistan makes this distinction clear by treating principles of policy as distinct from fundamental rights. The latter can be enforced and implemented by courts; the former are aspirational goals left to executive and parliamentary discretion. The purpose of the Constitution’s principles of policy is to speak broadly about the type of democracy we want to have. It is up to the democratic process to get us there.  

The democratic process is far better suited than the judicial process to come to the right decision on matters of policy. The nature of parliamentary democracy is such that issues must be debated, reasoned, and weighed by elected representatives before decisions on them can be taken. The entire process is built to accommodate compromises and negotiations on intractable issues. The courts aren’t suited for this because they are fundamentally adversarial in nature. Built not on arriving at decisions based on compromise, but on exacting legal rules. They cannot weigh the numerous equities at play such as how best to allocate state resources.

Apart from lacking the expertise to solve these issues, the judiciary is not the right place for these decisions because it is unelected and therefore its decisions on policy would lack legitimacy. They cannot be held to account for their bad decisions the same way as parliamentarians can because judges can’t be voted out of office.

These factors lead to the conclusion that whenever the Chief Justice of Pakistan uses the suo motu power to determine state policy, it undermines democracy. Institutional boundaries are blurred, and an unelected individual is allowed to wield extraordinary power to impose their own subjective economic, social, and political views on an entire nation. All while exercising a power that finds no clear basis in the text of the Constitution.

The Rule of Law Problem

That the suo motu allows judges to make policy is cause enough to consider steps to curtail this power. But even if exercised for fundamental rights protection, the power runs into broader rule of law problems.

When the Chief Justice takes suo motu notice of an issue he is signalling that he cares deeply about the question it raises. That issue is then heard by a bench presided over by him. This is a problem because you now have a judge hearing a case without impartiality. Disclosing where the judge stands before a single argument is presented.

Add to this the Chief Justice’s absolute discretion to determine who sits on a bench hearing a case with him and disputes become foregone conclusions. These judges often have the same ideological views as the chief on the matter. Agreement is guaranteed from the outset. In the rare case where there is dissent, the bench can always be reconstituted. As when Saqib Nisar abruptly reconstituted a bench to exclude Justice Qazi Faez Isa as soon as a glimmer of disagreement was witnessed, or the recent fiasco during the hearing concerning the date for provincial elections in Punjab and KP.

It is an essential attribute of the rule of law and due process that justice must not only be practically done but should also be seen to be done by the people. The public’s confidence in the impartiality of the judicial process is as important as the results of that process. People need to have confidence that judges have a certain level of detachment from the cases they are hearing, that all sides will be heard fairly, and that decisions will be made according to objective principles rather than the subjective views of the Chief Justice.

The suo motu prevents this. Instead, it signals that those who hold the same views on an issue as the current chief’s pet project will have greater chances of success. And again, there is evidence for this. During Saqib Nisar’s tenure it was clear that a person’s views on the dam fund would determine how they would be treated in court. The image of the judiciary as an impartial arbiter was fractured.  As former Supreme Court justice, Maqbool Baqar, said about the power to reconstitute benches: “The practice has also tarnished the public’s perception about the independence of the judiciary.”

The rule of law is also about reigning in discretion. Discretion is supreme when it is completely up to the whims of one individual on what is a matter of public importance. There are no clear guidelines on this, so justice depends on the Chief Justice’s preference – not the law.

These concerns are now being raised from within the Supreme Court itself. Fracturing institutional solidarity because of the bullheaded refusal by each Chief Justice to reign in their power. In a searing critique that brings to light the polarisation now prevalent in the court itself, Justice Mansoor Ali Shah accused the office of the Chief Justice of Pakistan of making the Supreme Court a “one-man show.” Arguing that it was “anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms.”

All of this is happening without any modicum of accountability. The only institution that can hold the Chief Justice accountable is the Supreme Judicial Council. Essentially the judiciary itself. Ironically that is where it shows maximum restraint. Evident from when the Women’s Action Forum filed a reference against Saqib Nisar. A matter never heard or addressed despite a well-documented and strong case against him.

Justice is a system

I am conscious that all these arguments – on democracy, discretion, and impartiality – may be met with the same objection. That Pakistan is not an evolved democracy. The people in parliament are corrupt. Our institutions are not independent. The court, then, has no choice but to intervene to protect the country. Small wonder that suo motu cases which are tough on politicians are celebrated.

Extraordinary circumstances require extraordinary measures. It is an argument so familiar to Pakistan’s history that at this point it has lost all meaning. It has justified military rule and was the premise of Justice Munir’s use of necessity. To continue to insist on its worth is a failure to learn from history.

That all politicians are corrupt is another cliché. Yes, corruption exists in Pakistan, but institutional problem cannot be solved by singular decisions. Whatever our opinion on politicians, we must respect that they were voted into power by millions of Pakistanis. To disregard them is to disregard democracy.

Of course some suo motu decisions have given us good results. However, focusing on singular decisions is myopic. Justice is not simply about results. It is a system. To focus on results creates the dilemma that justice becomes little different from the views of a mob. Mobs don’t make a just process. An obsession with results ends up seeing the fundamentals of the rule of law as unnecessary obstacles rather than necessary foundations.

When we forget about systems, we never fix the problems that plague them. We create perverse incentives. Because the justice system is broken everyone wants a suo motu on their case because they recognise that it will be heard on an expedited basis. It is the ability to generate enough buzz and headlines that will get your case heard by the Chief Justice. Extra points if it can help him build a legacy. Meanwhile, the decades old property dispute of some poor individual is left navigating the maze of trial and appellate courts for a few more generations.

Law as Integrity

From here we need to chart a path forward. We need a deeper conversation on the relevance of suo motu powers and the merits of judicial restraint. Judicial restraint should not be caricatured as a theory preventing the evolution of law and precedent, instead it should be viewed as a principled stand in favour of the separation of powers.

Given how anomalous the suo motu power is in a democracy, the ideal solution would be to eliminate it altogether while framing clear guidelines on the exercise of the court’s jurisdiction when a petition is filed under Article 184 (3). Parliament should enact a framework on what the term ‘public importance’ can mean.

Alternatively, if the power is to be retained, we could have more a more robust and consultative framework for its exercise. For example, to modify on proposals given in Pakistan’s Senate by Farooq Naek in January 2022, and Justice Mansoor Ali Shah in his note in the recent provincial election case, the decision regarding whether a case merits suo motu notice should be taken by a panel of 5 judges in the Supreme Court rather than just the Chief Justice. This panel of judges could be a mix of senior and junior judges. If the panel decides to take suo motu notice, they should then refer the matter to be heard by a separate bench of judges to ensure impartiality.

These decisions should be appealable (currently suo motu decisions can only be challenged in review before the same bench of judges). Mistakes happen after all, even by the Supreme Court.

But none of this will matter unless we have a broader political consensus that the Supreme Court should not involve itself in cases that relate to economic and social policy that are best left to elected representatives. Pakistan needs less unelected institutions wielding power given its history.

Ronald Dworkin once memorably wrote how it was essential that law have integrity. To have integrity, the law must function as a body of coherent decisions. That cannot happen if the law changes with the Chief Justice.