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Why sou motu has become the way to justice?

25 1 1
03.09.2018

The power to take Suo Motu is incorporated in Article 184 (3) of the Constitution of Islamic Republic of Pakistan with respect to the initial jurisdiction of the Supreme Court, which establishes the following:

“Without prejudice to the provisions of Article 199, the Supreme Court, if it considers that an issue of public importance relating to the application of any of the fundamental rights of Chapter I of Part II, has the power to formulate order of the nature mentioned in said article “.

The often debated question is whether suo motu action is the only way for Pakistan to obtain justice. The answer to that is clearly a no. However, this is not the right question to ask in a day and a time when the government and the executive have not blamed people for flagrant violations of the law on many occasions. Therefore, the good question is whether an action under the suo motu powers granted to the Supreme Court is one of the most important means of defending justice. In this perspective, the actions of the CJP are perfectly legitimate and indeed necessary.

Some of the remarkable and recent suo motu actions taken by the CJP refer to the rape and murder of Asma and Zainab, and against the former SSP Malir Rao Anwar. Suo motus were also taken with regard to state government hospitals in Karachi, traffic blocks on public roads across the country due to the VVIP movement and the conditions of Lahore government hospitals. It should be noted that the only common thing in all these cases is that they all involve a topic of public importance, so they cannot be considered frivolous or beyond the powers conferred on the Supreme Court.

In addition, in cases such as Asma, Zainab and Anwar, there have already been several similar incidents that have been reported to the authorities. However, the victims and their families remained deprived of justice, leaving the Supreme Court to take matters into their own hands. Pakistan has always faced many cases of negligence on the part of the police, which ultimately leads people to lose confidence in our judicial system. Suo Motu becomes crucial to restore his confidence in the judiciary.

The practice of exercising suo motu powers is not limited to Pakistan but to courts in other jurisdictions, such as India. The decision of the 1995 Supreme Court of India on Shri Bodhisattwa Gautam against Miss Subhra Chakraborty recognized the suo motu powers of the Supreme Court and stated the following:

“For the exercise of this competence, it is not necessary that the person who is a victim of a violation of their fundamental right approach personally the Court, the Court can take knowledge of the matter and proceed suo motu or at the request of any individual public spirit “

At a time when incidents of corruption and fraud have increased unprecedented while the public remains at the mercy of higher authorities to act, the role of the CJP has been exemplary. He must continue to exercise suo motu powers whenever decisions on such actions are taken quickly and thoroughly.

Finally, in accordance with Article 184 (3) of the Constitution, the Supreme Court is not only empowered to adopt a suo motu measure, but, as a duty, it must exercise jurisdiction over the case. That said, all state organs, be they the judiciary, the executive or the legislature, must ensure that it operates in accordance with constitutional restrictions and that it performs effectively of his functions. It is only after a collective and harmonious effort by each of them that justice can be maintained in its purest form.

An argument against the CJP was that by taking such measures it intervened in the executive area and endangered the rule of law. This argument is totally wrong, since many cases, including those mentioned above, establish that the enforcement measures adopted by the various administrative and executive officials of the State may be questioned, among other things, under Articles 199 and 184 (3) of the Constitution. Such executive action may also be subject to parliamentary scrutiny and scrutiny in our parliamentary system of government. Legislative action can also be challenged in the courts, including the touchstone of the violation of the Constitution.

In the United States, the Constitution, under Article III, section 2, clause 1, allows courts to hear a case only if there is a “case or controversy” involved. This has been interpreted to mean that the US judicial system. It will not deal with theoretical, immature and consultative cases, or when the case has become theoretical. Indian courts have long been at the forefront of suo-motu cases, both in number and scope.

It can be argued that such a restriction is only possible in a mature democracy where the rule of law is accepted and public confidence in the capacity of administrative and executive bodies is guaranteed. In less developed countries, such as those in South Asia, this “splendid isolation” is unsustainable. It is true that the countries of South Asia have a much lower rate of human development and institutional integrity than those in the west. However, it would be true to say that democratic institutions need time to mature. In a democracy, almost all legislative processes involve compromises and it is unlikely that institutions can in fact mature if they are constantly reduced by the judicial organs of the state.

Suo motu, for better or worse, is here to stay. What is needed, however, is for the courts to develop an appropriate framework for their scope and execution, which has so far been lacking. Without this, it leads to the uncertainty and unpredictability of the actions of a court and, as one US judge said, “freedom finds no refuge in unpredictability.”

Mr. Justice! Call it judicial activism or anything, but it’s time for you to act decisively before donors begin to load Pakistani national assets. Pakistan is waging a war for its survival, both because of the machinations of the external enemy and the internal self-immolation acts of Pakistan’s rulers. You must rush to ask all provincial governments to immediately build small dams and hold a referendum in the country on the construction of the Kalabagh Dam, to be held in parallel with the next general elections, where the judiciary will also be responsible from posterity for imminent disaster.


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