The Counsel

Constitution

Judicial Activism Of The High Court Using SUO MOTU

by Barrister Ahmed Uzair

Associate, Cornelius, Lane & Mufti

1. INTRODUCTION
The question of “judicial activism” is of an increasing relevance to us in Pakistan; more so following the judicial “revolution” epitomized by the restoration of the Chief Justice of Pakistan. Judicial activism derives its existence from the judgments of the Chief Justice of the US Supreme Court John Marshal in the early 19th century. In the landmark case of Marbury vs. Madison1, it was declared that “an act [of another branch of government] repugnant to the Constitution is void”. The term “judicial activism” derives its origin in American political and legal discourse of the 1950s where Arthur Schlesinger Jr. in an article titled "The Supreme Court: 1947” profiled the nine Justices as either “judicial activists” or “champions of self restraint.” 2


2. JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT
As observed by Arthur Schlesinger Jr., two schools of thought emerged, i.e. those that ascribe a much limited role to the judiciary (they being the ‘champions of self restraint’), and those that argue in favour of greater judicial scrutiny (the ‘judicial activists’).

The champions of self restraint, jurists such as Alexander Bickel3, John Hart Ely4, highlight the anti-majoritarian nature of the judiciary, the fact that it is appointed and not directly accountable to the people and that by actively questioning the measures taken by the executive; the judiciary is usurping the power of the elected branches of the State.5 Since the judiciary is not elected it does not have any legitimacy to over-rule (let alone set) government policy, unless an action is in direct conflict with the Constitution. 6

On the other side of the scale, the followers of judicial activism justify going beyond and even against the intentions of those who have drafted the law. They argue that this greater role of the judiciary is vital to ensure a stronger democracy and a just and stable society. In other words; it is necessary to keep a check on transient majoritarianism (protection of minority rights and the underprivileged), and that it is necessary for the protection of liberty, property and life. The Judiciary does not act outside the democratic setup, rather it is a part of it, and its decisions are always under scrutiny by the people. 7

There is no denying that checks on the executive authority are absolutely essential for effective running of a democratic society. The question then is that of degree, extent and scope. Of particular interest to this author is the suo motu8 use of judicial powers in aid of judicial activism. It may be observed that judicial activism is by no means a recent phenomenon in Pakistan9 but suo motu exercise of judicial power is. 10


3. SUO MOTU

Judicial activism is invariably (but not necessarily) expressed in cases of judicial review i.e. people versus the State where an aggrieved person or group seek the court’s intervention against an action – or lack thereof – on part of the State. Exercise of suo motu11 can be classified as an extension of judicial review. However, and more crucially, in cases of suo motu the judge takes cognizance of a matter on his/her own initiative. On other occasions, simple applications filed in the court are converted into/deemed to have been filed as petitions.

Another distinction may be drawn here. The courts, being a creation of the Constitution, derive their authority from the Constitution or other laws that confer jurisdiction. The Supreme Court of Pakistan has been expressly conferred powers under Article 184 (3) of the Constitution to take suo motu action for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution. The said article reads as follows:

(3) “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”.

No such power is conferred to the High Courts by the Constitution i.e. to take suo motu action against the executive. The Constitution in fact goes so far as to state in Article 175 (2) that:

(2) “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”.
Therefore while a lot of the arguments for and against judicial activism in general, and suo motu in particular, are also applicable to the apex court, I will restrict my observations to the suo motu exercise of judicial power by the High Court.


4. HISTORICAL PERSPECTIVE: THE CONSERVATIVE VIEW

In the 1956 Constitution Article 170 defined the scope of the jurisdiction of the High Court conferred upon it; the Article read as follows:

Art 170: “Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the right conferred by Part II and for any other purpose”.

The Supreme Court has long maintained that the High Court is not competent to commence proceedings and issue directions suo motu. In the Supreme Court case of Tariq Transport Company, Lahore vs. Sargodha-Bhera Bus Service and other12, while interpreting Article 170 (above) Chief Justice Muhammad Munir observed that “… high court, therefore, is not competent merely on information or of its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under [Art. 170] ...13. Mr. Justice Shahabuddin in the same judgement also observed that; “… The normal procedure is to' move a Court by a petition, or a complaint or a plaint and in cases where power to act suo motu is given it is specifically conferred as in S. 115, Civil Procedure Code, and S. 435, Criminal Pro­cedure Code. I can see no ground for thinking that the intention of the Constitution was to empower, 'the High Courts to send for the records of any of the proceedings before any executive or quasi‑judicial authority and satisfy themselves that every depart­ment of the Government is functioning satisfactorily.14 Mr. Justice Cornelius made similar observation, holding that, “… I cannot conceive that the Article [175] can ever be thought to include a general power in the High Court to conduct searching enquiries into the internal working of such an institution as the R. T. A.”15

The reservations of the Supreme Court in this case were clear. If the High Courts started conducting inquiries into the affairs of government departments in order to “satisfy themselves” the State machinery would grind to a halt.

In two subsequent cases the Supreme Court reiterated the above mentioned position; first in the case of Fazle-e-Haq, Accountant-General, West Pakistan vs. The State16 and then in the case of Islamic Republic of Pakistan vs. Muhammad Saeed17

In the 1962 Constitution the jurisdiction of the High Courts was defined in Article 98 that made it even more explicit that issuance of writ were subject to applications by aggrieved party; in case of certiorari and mandamus or any person in case of habeas corpus and quo warranto.

In the land-mark judgment titled Shahnaz Begum vs. The Honourable Judges of the High Court of Sindh and Balochistan and another18 the Chief JusticeHamood-ur-Rahman in respect of the Constitution of 1962 observed that; “ … under the 1962 Cons­titution a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circum­stances but even in such a case the High Court cannot move suo motu for, it is specifically provided in each of the sub-clauses (a), (b) and (c) of Clause (2) of Article 98 that only "on the application of an aggrieved party or of any person," the High Court may make the orders or issue the directions therein specified.” 19

The Supreme Court made it clear that “… it is of the utmost importance to remember that a superior Court should not allow itself to be influenced by sensational reports in newspapers or by what he may have heard or read outside the Court, for in the first case it may unwittingly be encouraging a trial by the press and in the other case unnecessarily be exposing itself to criticism that its actions are motivated by bias.20  

Again the reservations of the Supreme Court are clear and they cannot be truer in this day and age when media organizations are in competition with each other over viewership and the reporting is invariably sensationalized.21

The provisions on powers of the High Courts in the present Constitution more or less resemble those in the 1962 Constitution. The Supreme Court therefore reiterated its declaration of law in 1982 that the High Court does not have suo motu powers observing that “It is settled law that in writ proceedings, the relief must be confined to the prayer made in the writ petition and the High Court cannot issue a writ suo motu.”22


5. POST-CONSERVATIVE POSITION

The above referred position is representative of self restraint; at-least so far as the High Court is concerned and has held fort for quite some time.23 However, since the judicial “revolution”, it is clear that the judiciary sees a wider role for itself in the affairs of the State. In the last 5 years there have been many instances of suo motu actions by the High Courts, most notably, the Lahore High Court. The majority of the public has welcomed this development and has brought with it astronomical expectations from the judiciary. A number of cases were taken up suo motu by the previous Chief Justice of the Lahore High Court Mr. Justice Khuwaja Muhammad Sharif. These cases ranged from the negligence of doctors resulting in death,24 increase in bus fares,25 the government’s decision to withdraw the promotion of prison department employees,26 the ZARCO Exchange fraud27 and the suo motu notice on the sugar price hike28 just to name a few.

Mr. Justice Sharif reportedly remarked that suo motu powers of the judiciary [i.e. of the High Courts] was an effective way to check violations of law by the executive and to protect the rights and the lives of the poor in the country and that “I will take notice of every matter in which the executive is showing slackness, as justice should be dispensed at all costs.”29

Supporters of the post-conservative judicial activism highlight the inefficiencies of the other branches of government and state that people harbor greater expectations from the judiciary as most [government] departments have failed to deliver on what was expected of them.30

Justice Shri V.R. Krishna Iyer of the Indian Supreme Court, on the question of judicial activism observed that “the true strength and stability of our polity is the society’s credibility in social justice, not perfect ‘legalese’, and this does not disclose any difference to this fundamental value.” This in effect represents the essence of post-conservative jurisprudence at the Lahore High Court. i.e. to do away with legal hurdles as “justice is to be dispensed at all costs.”31

Another important aspect of the modern approach is the perception of ‘dispensation of justice’. An Executive that is constantly looking over its shoulder is starting to – albeit at a snail’s pace – think twice before usurping the public trust.

Finally, the proponents of judicial activism can argue that there is a tacit consent on the part of the people of Pakistan when they (twice) took part in the campaign for the restoration of the judiciary.32


6. JUDICIAL RESTRAINT IN PAKISTAN

With the advent of this post conservative trend a school of thought has emerged that opposes this development. They warn against greater judicial activism and by extension suo motu exercise of judicial power. They highlight the jurisprudence of the last five decades.33

Secondly, they are argue that the High Courts, by taking suo motu notice, are discouraging people from following the due process of the law i.e. the right of an aggrieved person to move the Court when his/her right is being infringed/violated.34

Thirdly, cases that are already pending before the courts are delayed even further. As of 30th June 2010 there are nearly 1.65 million cases pending in the Courts in Pakistan, out of which more than 85,000 are before the High Courts. While the High Courts take suo motu notice of issues in the news, these cases are reprioritized].35 Why would one - as a litigant - want to spend long and arduous years in courts following the procedure prescribed by law?36  

Fourthly, if the justification for suo motu action is “justice delayed is justice denied”, do those litigants whose cases are already pending before the High Court not have the same right

Then there is the question of practicality. It is simply not possible for the High Court to take suo motu notice of every indiscretion of the executive. Therefore the High Court is - in effect - choosing which matters to take notice of and which not. What is, in that case, the criterion for such a selection? What of those citizens whose plight is not taken up by the High Court?

Finally they argue that how can an unrepresentative and unaccountable body or person decide on policy matters that should be the exclusive purview of the elected officials?37 Clearly it is an inherent contradiction to the concept democracy that policy is determined by the judiciary.

In this regard the example of the suo motu notice taken by Lahore High Court’s Divisional Bench of the high price of sugar may be mentioned. The Court ordered the price of sugar to be fixed at Rs. 40 per Kg. This level of micro-management of public policy is quite alarming. The outcome has been that neither the price has been fully stabilized nor fully floated, as there is constant risk of artificial interference.38 Wouldn’t a long-term solution aimed against hoarders, by enforcement and strengthening of anti-trust and anti-monopoly laws be more effective?


7. CONCLUSION

Therefore it may be concluded that notwithstanding the nobility of the objective, it is simply not possible for a Court of Law to ensure effective running of each and every department of the government. Even with its widening sphere of influence - which is a reality - the judiciary must not overwhelm itself by this ever greater public expectation and not let itself get embroiled in micro-managing the affairs of the executive, or for that matter, the legislative. If the judiciary decides on policy matters such as the price of sugar or carbon levy, it should then expect to share the responsibility should things don’t go according to plan.

The judiciary cannot endeavor to cause a reformation of the society. It is not its role and for this reason that the Supreme Court, in the recent judgment on the National Reconciliation Ordinance observed that “… if the Court attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield doctrines such as the ‘law of necessity’ or salus populi suprema lex.”

While one cannot categorically state that there has been greater vigilance on the part of the executive, or that there will be any lasting effect of the suo motu use of judicial power, as only time will tell. The judiciary however needs to recognize its own limits and strike a balance. No rule ought to be laid down as to whether or when or to what extent judicial power may be exercised suo motu. It is my opinion that neither should there be an absolute bar, nor should it be unbridled authority and it is for the High Court for itself to recognize and lay down its own limitations.

The author is a Barrister and an Associate at Cornelius, Lane and Mufti at Lahore. He is also a Correspondent for The Counsel. Comments may be directed to editors@counselpakistan.com.

1 5 U.S. (1 Cranch) 137 (1803).

2 January 1947 edition of Fortune magazine.

3 A constitutional expert and one of the most prominent critics of modern judicial activism. See particularly The Least Dangerous Branch (Bobbs-Merrill, 1962). The title of the book in turn comes from the essay  Federalist #78 by Alexander Hamilton who referred to the [U.S.]  Supreme Court as the "least dangerous" branch of the government because it possessed neither the "power of the purse" nor that of "the sword". See also A Conversation with Chief Justice John Roberts About the U.S. Constitution.

4 Another prominent Jurist of the 20th century who in Democracy and Distrust: A Theory of Judicial Review wrote that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic. In Pakistan we have the example of Mian Saqib Nisar, Judge of the Supreme Court of Pakistan, once remarked in Court while sitting as a High Court judge that “[suo motu] is not an unbridled power and there should be some check on it”

5 See for example the dissenting note of Justice Antinia Scalia in Romer vs. Evans 517 U.S. 620 (1996)

6 See for example Judicial Activism: Bulwark of Freedom or Precarious Security? By Christopher Wolfe

7 Ibid

8 Suo motu is a Latin legal term that means meaning "on its own motion".

9 Justice Nasir Aslam Zahid for example consistently provided suo motu relief to illegally incarcerated youth during 1992-1994 As Chief Justice of Karachi High Court.

10 Note that the power of judicial review was created in above mentioned Marbury case though the general idea has ancient roots i.e. the courts could nullify statutes originates in England with Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a

11 Suo motu is a Latin legal term that means meaning "on its own motion".

12 PLD 1958 SC (Pak) 437

13 PLD 1958 SC (Pak) 437 pg. 454

14 Ibid pg. 465

15 Ibid pg. 497-498

16 PLD 1960 SC (Pak.) 295

17 PLD 1961 SC 192

18 PLD 1971 SC 677

19 Ibid Pg. 687

20 Ibid Pg. 693-694

21 Note that Although some self-regulation in the form of a code of conduct exists, for example, the Code of Conduct Signed in November 2009. See also Section 20 of the PEMRA Ordinance, 2002 and Section 15 of PEMRA Rules, 2009. However there is little check on the veracity of information provided by the media

22 1982 SCMR 549

23 See for example the case of 1990 P.Cr.L.J. 1231 D.B. KHC and the 2001 YLR 2403 [Khi]. In both of the cases the Karachi High Court observed that suo motu powers are not available to the High Court. However see the case of 2000 MLD 1055 where the Lahore High Court did take suo motu notice over death of a child who fell in the man hole.

24 It is worth noting here that on December 17, 2009 LHC Chief Justice Khawaja Sharif after suo motu proceedings into the Imanae Malik death case instructed to add section 302 to the FIR already booked against the owners and doctors of Doctors’ Hospital, the accused. In another case the suo motu notice was taken, when LHC CJ summons ‘careless’ Sargodha doctor on 11th Jan 2010 .

27 PLD 2010 Lahore 23

29 Bench Split on suo motu powers of high Courts Dawn [12.01.2010]

30 Justice Javed Iqbal of the Supreme Court made these observations see “… CJ has changed course of history, says Justice Javed

33 See Dawn.com | Editorial | The exercise of suo motu

34 Ibid

36 See Footnote 32

37 See for example “Suo motu Exercise of Writ Jurisdiction” by Barrister Asif Saeed Khan Khosa [now Justice of the Supreme Court] PLD 1993 2 JOUR Pg 87

38 Other examples can be found in the Supreme Court. Take for instance the levy of Carbon Tax. A petition was filed challenging the said tax. The court stayed its collection which would have brough Rs. 120 Billion to the State. The government introduced the same tax with a different name. Another petition challenging the same was dismissed on technical grounds. Another interesting example is the Steel Mills case. The Supreme Court annulled the privatization of Pakistan Steel Mills. The winning bid in this case was $362 million, add the $250 million the bidder promised in court to invest and finally the loss racked up by the mill in the year 2008-2009, i.e. Rs. 22 Billion the total loss to the State coffers was approximately 60 Billion. See the observations by Faisal H. Naqvi in “The economics of Judicial Intervention”, The Friday Times dated 19.03.2010