Respecting The Balance
It seems as if in 2017, there was never a day when the Supreme Court (SC) was not in the news, and this month, the Court is busier and more active than ever. The SC has taken suo moto cases on several cases; including a two-member bench headed by Chief Justice of Pakistan (CJP) Mian Saqib Nisar over fee structure and the admission criteria of private medical colleges, at the Supreme Court Lahore registry. Earlier, the SC stopped private medical colleges all over the country from inducting students into their programmes until the court orders to the contrary during the case proceedings.
The SC is right in that the problem of sham colleges and inflated prices is a real one; as pointed out that sham medical colleges, charging up to 0.9 million Rupees, are damaging the reputation of the medical profession of Pakistan internationally. While the action and the intent of the SC are certainly appreciable, as with the inspection of Mayo Hospital by the CJP, in this case too, the SC might not be the right vehicle to look after this problem.
The consistent use of suo moto by the SC is worrying. In Article 184 (3) of Pakistan’s Constitution, the Supreme Court is allowed to take suo motu action whenever there is a possible violation of fundamental rights enumerated in Chapters 1 and 2; however, the scope of suo moto is not infinite and does not grant the court powers of policy making. History has seen positive uses of suo moto in Pakistan, such as in 2006 missing persons case; however, it is used best invoked only when all other institutions have proved futile, and in a case of urgency. It is difficult to imagine that a panel of judges only trained in the proper interpretation and implementation of law, would be the best office to pore over college syllabuses and prospectuses to come up with an actionable policy. The Higher Education Commission and floor of the parliament are better forums for this.
The use of suo motu is a powerful feature to the balance of powers between the Parliament, Supreme Court, and the President’s office; however, if misused, it undermines and makes defunct the legislative and executive bodies of the country. The Court’s duty is to enforce policy, not make it; a better approach would be to interpret the law in ways that respects the balance of powers, yet leaves room for future jurists to expand upon change.