Exercise of discretion

The unchecked and unregulated exercise of discretion is a recipe for the abuse of power whether exercised in the appointment of judges or the constitution of benches, fixation of cases or initiation of suo motu proceedings. Justice Mansoor Ali Shah of the Supreme Court of Pakistan, while deciding an appeal, observed that having taken an oath to preserve, protect and defend the constitution, judges cannot be forgetful of the fact that they themselves are first and foremost subject to the constitution and the law, adding that judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.

As early as the 14th century, the English were weary of the various formalities and lengthy court procedures. Hence, they introduced parallel chancery courts, where cases were speedily decided—not according to law but as per ‘equity’ and ‘good conscience’. Over time, however, jurists like Selden realised that freeing judges from the constraints of formal laws had robbed the legal system of its certainty. Not only did the Lord Chancellors feel free to break the law, but what one Chancellor considered fair was inadmissible to another. After a while, therefore, the English were compelled to formalise the rules and procedures of chancery courts and bind them to statutes and precedents. Eventually, they just merged chancery courts into the courts of law. Interestingly, our experience of suo motu has run a similar trajectory in history as well. The expression means ‘of one’s own motion’, implying towards consideration, discretion and option.

The first examples of the Supreme Court acting on its own emerged in the early nineties. It was an innovation by the court, later justified through judgements creatively interpreting Article 184 (3) of the Constitution. It aimed to free the court from shackles of legal procedure and allow direct intervention where citizens’ fundamental rights were being violated. But regardless of good intentions, suo motu actions were often criticised as forsaking the certain shores of law for the uncertain tides of “equity” and “conscience”. Questions arose as to why would anyone want to spend long and arduous years in court following the procedure prescribed by law when it is quicker to get justice if you can attract media coverage by protesting on Mall Road? If speedy justice is what those protesting at the high court want, don’t the people whose cases are pending have the same right to an expediated trial? For reasons understood easily, suo motu orders are statistically likelier to veer into the realm of policy-making, to bypass due process and past precedents, and be accompanied by unusually rambunctious observations.

Justice Yahya Afridi also noted in Justice Qazi Faez Isa review case, that the Supreme Court should be more cautious in exercising its advisory and suo motu jurisdiction because no appeal could be mounted against its judgments and opinions on those matters. It can be said that suo motu actions, for all their perceived benefits, are inherent illustrations of the failure of the judicial system to dispense justice in a durable and swift manner. There would be no need for the Supreme Court to short-circuit and jolt the entire judicial process to remedy an injustice if the normal judicial processes enshrined in the law were effective enough to address the grievances of parties. If majority of people perceived the exercise of such powers in this light, we would definitely be less jubilant and more concerned with every successive suo motu notice being taken.

The International Commission of Jurists in their 2013 report titled “Authority without Accountability: The Search for Justice in Pakistan” had proposed that the Supreme Court of Pakistan must make rules for the transparent exercise of its suo motu powers under Article 184(3) specifically providing for transparent criteria detailing matters the Supreme Court can take suo motu notice of, composition of the benches made by the chief justice to hear suo motu matters and the procedure to be adopted by the court in a suo motu hearing. By formulating this, the apex court would certainly maintain the standards of transparency and objectivity that it holds every other institution in this country accountable to. Keeping in view that Pakistan has witnessed a ‘judicialisation of politics’, a phenomenon where questions of public policy and the settlement of purely political disputes are often entrusted to the courts, it is necessary and imperative that the highest court of our land takes some time to introspect and structure the use of its powers in accordance with the Constitution.

What remains to be seen is whether the Supreme Court, given the socio-political realities of the country, really requires an unhindered power to take suo motu cognisance of matters in order to fulfil its constitutionally determined objectives or whether the opposite is true, that by failing to clearly limit the scope of suo motu the Court betrays its constitutional role. Most importantly perhaps, our judiciary may remember that judicial independence can be guarded—not by creating the hegemony of one institution over others—but by affording everyone, especially judges themselves, certain procedural safeguards.

The writer is an Advocate of the High Courts of Pakistan and an Executive Member of the International Bar Association.

If speedy justice is what those protesting at the high court want, don’t the people whose cases are pending have the same right to an expediated trial?

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