The liberal interpretation of article 184(3) of the constitution granting the Supreme Court (SC) the powers to take suo motu notice to consider a question of public importance concerning the enforcement of any of the Fundamental Rights has invited some valid criticism of the apex court’s actions. A large number of suo-motu actions came in for criticism from many quarters for complicating the administrative functions as well as creating unpredictability. The apex court while invoking its powers under the said article many a time indulges in judicial activism. Finally, the Chief Justice of Pakistan (CJP) Mian Saqib Nisar has realised the need for regulating the powers of Supreme Court that article 184 (3) of the Constitution grants it.
It is important to recall that the apex Court in Pakistan invokes Suo-Motu action –peculiar power enshrined in the Constitutions of Pakistan and India– to question the performance and actions of other state institutions. But our past experiences have shown that Suo-Motu action has never solved any administrative failure.
While two senior lawyers are supposed to provide assistance to the SC in regulating its power with respect to Article 184(3), the question “Should the scope of Article 184(3) power and the manner of its exercise depend on the personal preferences of each incumbent chief justice or should there be certainty about the scope of such constitutional power?” would be the most contested one.
Nonetheless, there are other crucial issues that the highest court needs to take care of. The most important is that the SC should not become the court of the first instance. For example, action to protect “Fundamental Rights” enshrined in the constitution need to be taken only if the government provides no relief or the aggrieved person exhausts all avenues. Furthermore, the court should not blur the delicate balance created under the separation of power among the institutions.
The court should refrain from formulating government policies or take positive executive actions on its behalf. Attempts to solve deeply rooted problems and issues on an ad hoc basis have never found any sustainable solution. The most recent example of how ad hoc actions are not the right choice to correct the problems is Saqib Nisar’s visits to hospitals and failing in gathering enough funds for dam building. At most, the apex court should stick to legal censuring. And of course, it would be ideal if the SC does not decide on its powers. Parliament is the body to define the authority of any institution that runs the affairs of the state.