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Contours of Supreme Court’s Suo-moto/Original Jurisdiction – II

Mohammad Akram Sheikh
Friday,  January 06, 2012

PART-II

When the Supreme Court exercises its jurisdiction under Article 184-3 it is not the affluent class or the bulk of influential class of people, which provides impetus to the Apex Court for exercise of its suo moto power, but it is the silent multitudes whose benefit it is employed for. Therefore, the constitution mandates that this power is exercised in matters of public importance. This concept has been defined in PLD 2004 SC 583 (Mian Muhammad Shahbaz Sharif Vs. Federation of Pakistan) in the following words:-

“:The issues arising in a case cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance must be such that its decision affects the rights and liberties of people at large. The adjective ‘public’ necessarily implies a thing belonging to people at large, the nation, the State or, a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance. ”

Same view has recently been taken in Watan Party’s case ‘PLD 2003 SC 74′. It was a 5 ‑ member Bench judgment to which one of us (Nazim Hussain Siddiqui, now Chief Justice) was a party, wherein reliance was placed on Manzoor Elahi’s case and the above view was endorsed. For facility of reference, the relevant observations in the latter case are reproduced below:‑‑

“Now, what is meant by a question of public importance. The term `public’ is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective; something pertaining to, or belonging to the people, relating to a nation, State or community…”

“The learned Attorney‑General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. ”

Although the Supreme Court thereafter in a number of cases, such as Amanullah Khan v. Chairman, Medical Research Council ‘1995 SCMR 202′ and Mrs. Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) has taken a different view, yet the cases under Article 184-3 have been brought within the parameters of the observations referred to above.

Learned Attorney General took us through Article 32 of the Constitution of India, which is pari material with Article 184-3 of the Constitution of Pakistan. It is noted that the words `question of public importance’ are not used in Article 32 of the Constitution of India. The Constitutions of 1956 and 1962 also did not have these words. There is a conscious departure and the words `question of public importance’ in Article 184(3) have been used with a purpose. The parameters of the jurisdiction under Article 184-3 are, that the petition must raise a question of public importance. In India, where there is no such requirement, the Supreme Court of India, has held that if the scope of Article 32 of the Indian Constitution were to be enlarged, it would immensely increase the dockets of the Court. Such jurisdiction remains with the High Court.

There are two options before the guardian of fundamental rights when a common man scribbles a plea on a piece of paper without formal presentation and for their enforcement, either to act on the scribbling of a common man on a piece of paper without any formal presentation or neglect its foremost duty as the repository of ultimate thrust and fail to filter down benefits of fundamental rights to the common man at the lowest rung of society.

The intended focus of this article is twofold. The writer believes that at the present juncture of Pakistan’s political and constitutional development, the Supreme Court carries the burden of the expectation that the Constitutional guarantees will be provided, as well as protected and enforced by it. This puts it in a position of acting with greater responsibility, while discharging its foremost duty as a trustee of the Judicial State Power. The matters of concern for other limbs of the state, which are quite often highlighted in national and international discourse, could be dealt with by laying down a Criteria to be strictly adhered to.

Therefore, it becomes imperative to comment on genesis of the power to take up matters suo moto, and the need to clearly and vividly demarcate the parameters of such exercise so that not only can there be benchmark precedence, but also to address any constitutional concerns arising out of the oft repeated separation of powers criticism.

In neighboring India, the inherent powers of the courts have been exercised suo moto and a clearer picture viz a viz its parameters could be seen. Whether it is done so as to extend the benefits of setting aside a conviction to a non-appealing accused in a revisional jurisdiction, or to correct a ‘clear illegality or injustice that comes to the notice of the court by whatsoever means it might be’, the Courts have exercised their powers to extend Constitutional safeguards.

Although it may seem that the courts may act in abundance, even more so in a state like Pakistan, the Indian courts have themselves resolved to act in their inherent capacity ‘in the rarest of rare cases’, recognizing that the power does not confer an arbitrary jurisdiction.

Guidelines from other common law jurisdictions may also be instrumental for the Supreme Court to define the province of its suo moto powers. The objective, as important as ensuring complete justice for all and sundry, must always to be maintained. Certainty and clarity in law, and recognition of the independence of the functions of the different limbs of the state shall ward off malafide criticism by hoodwinkers and would expose their self centered Criticism.

As the Federation invariably takes up objection to assumption of suo moto jurisdiction, there is a need for a categorical parameters to be laid down listing categories of cases where suo moto exercise has no alternative and invocation of this jurisdiction is sine qua non for protection and enforcement of those of such rights which fall within the charter of Courts duties.

There is also a need for listing clear exceptions to the general rule of exercise of this judicial power so as to seriously register once and for all, for the information for everyone, where the Supreme Court shall exercise restraint in issuing appropriate writs.

Although in a plethora of judgments the criteria for exercise of power under article 184-3 has been laid down but some cases have been noticed where a petition is pending, and the same subject and issue has also been taken note of by the Supreme Court in exercise of suo moto jurisdiction.

It is, therefore, of great importance that in order to continue discharging of an imperative mandate of the constitutional obligations as guarantees of fundamental rights, the Apex Court lays down broad contours and parameters of exercise of this most pivotal jurisdiction conferred upon it by virtue of being the sole repository of judicial power of the state. This shall also obviate the oft repeated rhetoric of transgression of the trichotomy of power guaranteed by the Constitution.

Protection of individual freedoms can only be possible if the executive and the judiciary exercise their powers complementary to each other, and not overlapping, and the combination of individual liberty with a due observance of law is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in appropriate cases.