ISLAMABAD: The International Commission of Jurists (ICJ) has said that

the Supreme Court of Pakistan should exercise restraint in taking up suo

motu proceedings because overuse of the provision could endanger the
rule of law.
The visiting ICJ mission recommended to the apex court to adopt rules setting
out the criteria for the use of suo motu procedures and for the allocation of
cases to benches.
The ICJ mission chief said at a press conference here on Friday, after a sixday visit to the country, that it appeared the Supreme Court was exceeding the
limits of a reasonable use of suo motu procedure.
Stefan Trechsel said the legal profession and members of the bar appeared
divided over the use of the suo motu proceedings by the Supreme Court.
On one hand, some supported the current liberal practice, but on the other, a
number of lawyers and former judges felt that the Supreme Court has gone
too far and that the practice endangered the rule of law, he said.
Graham Leung, another judge, accompanied Mr Trechsel. He said that when
the apex court took up the cases itself the parties involved might be deprived
of their right to appeal.
Concern has also been raised with regard to the allocation of cases to
different benches of the Supreme Court, he said, adding it appears that there
may be a need for greater transparency in this respect.
Members of the Geneva-based ICJ arrived in the country under the
commissions South Asia Programme to examine the independence of
judiciary since the lawyers movement.
The mission visited Lahore, Karachi and Islamabad and held meetings with
members of the legal profession, officials and civil society activists.
The team met a number of justices of the Supreme Court, the chief justice of
the Lahore High Court, retired judges, politicians and members of the lawyers
movement and the bar.

The mission praised the Supreme Court for taking up human rights issues and
said that there seemed to be a widespread agreement over suo motu
proceedings which were justified and valuable in appropriate cases.
Mr Trechsel said the Supreme Court had occasionally gone too far and ought
to exercise more judicial restraint.
He said: No one gave clear indications on how the limit ought to be drawn.
Mr Trechsel said the mission could not meet Chief Justice Iftikhar Mohammad
Chaudhry.
The mission members observed that the judicial activism of the Supreme
Court might be understandable to some degree and gave the perception in
some quarters that the state had not been always able to discharge its
responsibilities.
They, however, said that on the other hand, there were reasons that led to
some understanding for the activism of the Supreme Court.
In fact it appears that the government is not able to fulfil its tasks, but judicial
interventions may bring relief in some cases, the Supreme Court is perceived
by some observers as undue interference, they said.
Mr Trechsel said that it was alleged that some judgments had as yet not been
implemented by the authorities.
The anecdotal evidence we have heard suggests that the problem of
corruption in the lower levels of the judiciary is particularly acute and may be
widespread, he said, adding that it affected functioning of judiciary and
undermined public confidence in the institution.
The mission members observed that the lawyers movement for restoration of
the rule of law and Chief Justice Iftikhar Mohammad Chaudhry had been
successful and merits admiration.
This leads to a corrosion of the rule of law and a blurring of the constitutional
separation of powers, Mr Trechsel said.
http://beta.dawn.com/news/659509/sc-exceeding-limits-of-suo-motu-rules-icj
DAWN, 16-09-2011

SC reply to ICJ: rules exist for suo motu cases

18 September 2011

ISLAMABAD: The Supreme Court on Saturday

said Article 184(3) of the Constitution mandated
it to take up cases of violation of fundamental
rights that are guaranteed by the Constitution
a jurisdiction which it enjoyed along with the
high
courts.
In response to a statement issued by the
International Commission of Jurists (ICJ), the
Supreme Court Registrar Dr Faqir Hussain
explained that the press conference by the
member of the ICJ appeared to be based on some miscomprehension, perhaps ignorance, of the constitutional
provisions
and
case
law
developed
on
the
issue.
On Friday Mr Stefan Trechsel, the visiting ICJ head, had in a news conference urged the Supreme Court to exercise
restraint in taking up cases suo motu because overuse of this procedure could endanger the rule of law. He had
stressed that there was a need for transparency in allocation of such cases to different benches.
The statement issued by the Supreme Court registrar recalled that the procedure for processing suo motu cases
was prescribed in Order XXV of the Supreme Court Rules, 1980; besides, he added, the issue had long been
settled by the Supreme Court in successive judgments, including in the case of Ms Benazir Bhutto versus
Federation of Pakistan (PLD 1988 SC 416). In that judgment, the statement said, the apex court while interpreting
Articles 184(3) and 199 of the Constitution had observed that the procedural trappings and limitations of Article 199
(1)(a) and (1)(c) (meaning requirements of aggrieved party, locus standi, etc) did not apply to the Supreme Court,
while
exercising
powers
under
Article
184(3)
of
the
Constitution.
Thus, the court has entertained petitions, complaints and had taken up matters of suo motu, in cases of violation of
fundamental rights, the statement said. The constitutional provision and the case law on the subject are very clear
and categoric, therefore, when a fit case is filed or comes to the court notice, the court cannot abdicate its
constitutional
obligation;
it
has
to
entertain
the
case.

After registration of the case, it is fixed before benches of the court for decision and the parties to the case and
other persons involved/ interested in the matter can appear before it, the statement said. At times, the court also
appoints amicus curie for its assistance or a committee or a commission can also be set up for inquiry and report.
The people of Pakistan are generally appreciative of the exercise of such jurisdiction by the Supreme Court
because it grants relief to aggrieved parties, especially poor and underprivileged sections of society, executives
wrongs are corrected and billions of rupees of misappropriated are recovered from the corrupt, the Supreme Court
statement said.

http://www.awaztoday.com/News_SC-reply-to-ICJ-rules-exist-for-suo-motucases_1_12856_Political-News.aspx

Indian Supreme Court says it has sky-high powers

to chase injustice
http://www.thehindu.com/news/national/supreme-court-says-it-has-skyhigh-powersto-chase-injustice/article2288114.ece

24-07-2011
When there is manifest injustice, it can suo motu act to set right illegality in High
Court verdict
The limits of power exercised by the Supreme Court when it chases injustice, are the sky itself, a
Bench of the apex court has said.
It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice.
Article 136 of the Constitution is a special jurisdiction. It is residuary power. It is extraordinary in its
amplitude. The limits of Supreme Court when it chases injustice, are the sky itself, said a Bench of
Justices J.M. Panchal and H.L. Gokhale.
The Bench said: The appellate power vested in the Supreme Court under Article 136 of the
Constitution is not to be confused with the ordinary appellate power exercised by appellate Courts
and appellate Tribunals under specific statutes. The powers under Article 136 can be exercised by the
Supreme Court, in favour of a party even suo motu when the Court is satisfied that compelling
grounds for its exercise exist.
STOPPING ILLEGALITY

Writing the judgment, Mr. Justice Panchal said: Where there is manifest injustice, a duty is
enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment
of the High Court as it is well-settled that illegality should not be allowed to be perpetuated and
failure by this Court to interfere with the same would amount to allow illegality to be perpetuated.
Rejecting the contention that the Supreme Court should not do anything which was not prayed for or
challenged, the Bench said: When an apparent irregularity is found by this Court in the order passed

by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing
with the cause pending before it. There is no reason why the relief cannot be and should not be
appropriately moulded while disposing of an appeal arising by grant of special leave under Article
136 of the Constitution.
The Bench was of the view that the power under Article 136 is meant to supplement the existing
legal framework. It is conceived to meet situations which cannot be effectively and appropriately
tackled by the existing provisions of law.
INSTANT CASE

In the instant case, the appellant, A. Subash Babu, a police officer in Andhra Pradesh, was alleged to
have entered into a second marriage by suppressing the fact of his first marriage, which was in
subsistence. Aggrieved, the second wife filed a complaint for offences of bigamy, suppression,
cheating, dowry and cruelty. The Andhra Pradesh High Court quashed the charges of dowry and
cruelty, holding that the second marriage was void but allowed other charges to remain. The present
appeal is directed against this judgment.
Dismissing the appeal, the Bench held that the woman with whom the second marriage was
contracted by suppressing the fact of former marriage would be entitled to maintain complaint
against her husband under Sections 494 and 495 of the Indian Penal Code. Further without any
appeal against quashing of charges under Section 498 A, the Bench said it could order reopening it to
render justice.
HEIGHT OF PERVERSITY

The Bench said: A bare reading of the complaint together with statutory provisions makes it
abundantly clear that the appellant having a wife living, married the second wife by concealing from
her the fact of former marriage and, therefore, her complaint against the appellant for commission of
offence punishable under Section 494 and 495 IPC is maintainable and cannot be quashed on this
ground. To hold that a woman with whom second marriage is performed is not entitled to maintain a
complaint under Section 494 IPC though she suffers legal injuries would be height of perversity.

The power of suo motu

By Khurram Hashmi (barrister at law). The Express Trbune
May 01, 2012.
http://tribune.com.pk/story/372164/the-power-of-suo-motu/

Suo-motu actions taken by the superior courts in the past few years have both enthralled the
general public and kept the activist judiciary active. A suo-motu action is when, instead of
parties bringing a case or controversy to the courts, the court takes cognisance of it itself
and commences proceedings.

While courts in Pakistan certainly do have the power to initiate suo-motu actions, it is not
an unbridled power. A line needs to be drawn to decide which cases fall under suo-motu
jurisdiction and which are beyond it. As a common law-based country, Pakistan has an
adversarial court structure. This contrasts with an inquisitorial system, which is in vogue
over much of continental Europe, whereby the court is an active participant whose role is to
discover the truth independently of the parties claims.
A perusal of suo-motu actions shows that the courts are drifting beyond the
interpretation of law as is their strict constitutional limit. A large number of suomotu actions came in for criticism from many quarters for complicating the administrative
functions as well as creating unpredictability.
Suo-motu actions take place all over the common law world. This has been called by one
observer as a unique feature of the post-1947 jurisprudence in South Asia, although the
Nigerian Supreme Court held that it, too, had the power to exercise suo-motu jurisdiction.
Bangladeshi Courts also have such a power although their usage of it has been far less than
elsewhere in South Asia.
In other parts of the Commonwealth, the situation is quite different. In Canada, the courts
of various provinces are forbidden from taking such notice unless expressly permitted by a
statute, which delineates the scope and extent of the power. Furthermore, there is no
recently reported case where an action was taken without a formal petition having been
filed. In Australia, South Africa and the Caribbean, suo-motu action of the type practised in
South Asia is unknown, although one South African report cited the Indian experience with
suo motu favourably.
In the United States, the Constitution by virtue of Article III Section 2 Clause 1 allows
the courts to take cognisance of a case only if there is a case or controversy involved. This
has been interpreted to mean that the US Judiciary will not take up cases which are
theoretical, unripe, advisory or where the matter has become moot. The Indian courts have
long taken the lead in suo-motu cases, both in number and in scope.
It can be argued that such restraint is possible only in a mature democracy where the rule of
law is accepted and there is public confidence in the abilities of the administrative and
executive bodies. In less developed countries, such as those in South Asia, such splendid
isolation is untenable. It is certainly true that South Asian countries have a far lower rate of
human development and institutional integrity than those in the West. Yet, it would be true
to say that democratic institutions require time to mature. In a democracy, almost all lawmaking involves compromises and it is unlikely that the institutions can in fact mature if
they are constantly undercut by the judicial organs of the state.
Suo motu, for better or for worse, is here to stay. What is necessary, however, is for the
courts to develop a proper framework for its scope and execution, which has until now been

lacking. Without that, it leads to uncertainty and unpredictability about a courts actions
and as one American judge once said, liberty finds no refuge in unpredictability.
Published in The Express Tribune, May 1st, 2012.

Sua sponte
From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Sua_sponte
In law, sua sponte (Latin: "of his, her, its or their own accord.") or suo motu describes an act of authority
taken without formal prompting from another party. The term is usually applied to actions by a judge taken
without a prior motion or request from the parties. The form nostra sponte (of our own accord) is
sometimes used by the court itself, when the action is taken by a multi-member court, such as an
appellate court, rather than by a single judge (third parties describing such actions would still refer to them
as 'sua sponte'). While usually applied to actions of a court, the term may reasonably be applied to
actions by government agencies and individuals acting in official capacity.
One situation in which a party might encourage a judge to move sua sponte occurs when that party is
preserving a special appearance(usually to challenge jurisdiction), and therefore cannot make motions on
its own behalf without making a general appearance. Common reasons for an action taken sua
sponte are when the judge determines that the court does not have subject-matter jurisdiction or that the
case should be moved to another judge because of a conflict of interest, even if all parties disagree.
Contents
[hide]

1 Notable cases

2 Other uses

3 See also

4 References

Notable cases[edit source | editbeta]

Carlisle v. United States 517 U.S. 416 (1996) - The Supreme Court of the United States ruled that
a district court could not movesua sponte to grant a judgment of acquittal (notwithstanding the
verdict) to remedy the late filing of the equivalent motion. [1]

Trest v. Cain 522 U.S. 87 (1997), 94 F.3d 1005 - The United States Court of Appeals for the Fifth
Circuit moved sua sponte to reject a habeas corpus claim because of procedural default, citing an
obligation to do so. The Supreme Court ruled that this was not obligatory, but declined to rule whether
it was permitted.[2]

Other uses[edit source | editbeta]

The 75th Ranger Regiment (United States Army Rangers) uses Sua Sponte as their regimental
motto, referring to the Rangers' ability to accomplish tasks with little to no prompting and to recognize
the fact that a Ranger volunteers three times; for the Army, for Airborne School, and for the Ranger
Regiment.

The Fenn School in Concord, Massachusetts uses Sua Sponte as its school motto usually seen
written in a furled banner beneath an engraving of the famous Daniel Chester French The Concord
Minute Man of 1775 statue.

Since 2009, the Supreme Court of Pakistan has frequently taken up Suo Motu cases
against government authorities there. This includes cases involving violence in the country,
government corruption, imposing price ceilings on various commodities, and many other cases. [3][4][5][6]
[7]
The extent to which the court should exercise this authority is a matter of political debate. [8]

See also[edit source | editbeta]

Motu proprio

References[edit source | editbeta]

1. ^ Carlisle v. United States, 517 U.S. 416 (Supreme Court of the United States 1996).
2. ^ Trest v. Cain, 522 U.S. 87 (Supreme Court of the United States 1997).
3. ^ http://tribune.com.pk/story/576919/karachi-violence-suo-motu-supreme-court-to-resume-proceedingsfrom-today/
4. ^ http://www.pakistantoday.com.pk/2013/06/20/news/national/sc-reserves-verdict-in-pol-gst-suo-motu-case/
5. ^ http://www.thehindu.com/news/international/south-asia/pakistan-court-takes-suo-motu-notice-of-hazarakillings/article4428761.ece

6. ^ http://www.dailytimes.com.pk/default.asp?page=2013%5C05%5C23%5Cstory_23-5-2013_pg11_4
7. ^ http://zeenews.india.com/news/south-asia/pak-s-cj-takes-suo-motu-notice-of-illegal-cnglicences_839259.html
8. ^ http://tribune.com.pk/story/372164/the-power-of-suo-motu/

Contours of SCs suo moto jurisdiction

December 30, 2011
MOHAMMAD AKRAM SHEIKH

The Supreme Court (SC) has commenced regular hearing of nine constitutional
petitions seeking its indulgence to constitute a commission to investigate into the
memo allegedly communicated to Admiral Mike Mullen on behalf of a senior
Washington-based Pakistani diplomat, who was acting on behalf of his boss.
The petitioners include the leader of the second largest party in Parliament, Mian
Mohammad Nawaz Sharif, along with other PML-N leaders.
The federation and Ambassador Hussain Haqqani have taken serious objection
to the jurisdiction of the Supreme Court as it neither involved an issue of public
importance, nor did it raise the enforcement of petitioners fundamental right,
and, therefore, the petitions were liable to be dismissed on the short question of

maintainability.
It is not for the first time that the federal government has challenged the apex
courts jurisdiction in such matters. In the last nearly four years that the
government has been in office, the Supreme Court initiated proceedings in a
number of major cases on its own under its original jurisdiction conferred by the
Constitution under Article 184(3). The government has almost in every such case
raised serious objections to suo moto exercise, and this has invariably been
termed as interference in the normal working of the executive branch violating
the theory of separation of powers. The argument is often stretched enough to
cover even the cases of corruption and where there are allegations of loot and
plunder of public exchequer in which the government has remained totally inert.
The legal argument for exercising suo moto or its original jurisdiction is simple.
The Supreme Court has been expressly empowered under Article 184(3) of the
Constitution to take such action for the enforcement of any of the fundamental
rights conferred by Chapter-I, Part-II. The self-evidently lucid Article of the
Constitution establishes mere permissibility of suo moto action invoking its
original jurisdiction by the Supreme Court. It is significant to notice that it
establishes permissibility and does not mandate or make it obligatory for the
court to do so in specific cases. But the question of exercise of such power for
the enforcement of fundamental rights coupled with its public importance is left to
the good conscience of the court to determine, keeping in view the jurisdictional
facts of each such case. These rights must be one of those rights that are
couched explicitly in the Constitution; hence, the court can choose not to take
any suo moto notice of a case not fulfilling the criteria.
The Latin term suo moto literally means on its own motion and is approximately
equivalent to the term sua sponte that means of his, her, its or their own accord,
describing an act of authority taken without formal prompting from another party.
Hence, the logical and semantic absurdity of demanding suo moto action should
be obvious in a modern-day legal system. But at the same time, the exercise of it
by the honourable judges has significantly a more fundamental and qualitative
aspect. The mechanism of suo moto notice enables the Supreme Court to filter
down benefits of the constitutional guarantees of the fundamental rights to the
lowest strata of society.
In fact, if one looks at the preamble of the Constitution, it expressly emphasises
that sovereignty belongs to Almighty Allah alone and the State power is a sacred
trust to be exercised by the chosen representatives of the people. One of the

foremost principles of trust power since times immemorial is that the power
ultimately belongs to the beneficiaries and could only be exercised in their best
interest and for their welfare.
In our country where more than half of its population is living below the poverty
line and people can barely sustain the ever-increasing price-hike and have to
work extra hours to make both ends meet, litigation is an expensive luxury
unaffordable at the Supreme Court level by more than 90 percent of the countrys
population.
What is the significance of the fundamental rights guaranteed by the Constitution
to these 90 percent citizens of Pakistan, if they cannot have access to an
enforcement mechanism provided by the laws of the country? The assurance
given by the Constitution of equal protection of its laws in return for unquestioned
obedience and loyalty withers off, if these rights are not enforceable and merely
an illusion in reality!
Article 184(3) of the Constitution empowers the Supreme Court to perform its
duties and obligations, as the guardian of these fundamental rights for their
enforcement and ensure that lowest of the low benefits from the constitutional
guarantees covenanted by the founding fathers in Articles 4 and 5. In a series of
judgments, the court has already outlined the various aspects of power, thus,
granted. For instance, in the State vs. Ziaur Rehman and others (PLD 1973 SC
49) the court observed: So far, as this court is concerned, it has never claimed to
be above the Constitution, nor to have the right to strike down any provision of
the Constitution. It has accepted the position that it is a creature of the
Constitution; that it derives its powers and jurisdictions from the Constitution; and
that it will even confine itself within the limits set by the Constitution, which it has
taken oath to protect and preserve, but it does claim and has always claimed that
it has the right to interpret the Constitution and to say as to what a particular
provision of the Constitution means or does not mean, even if that particular
provision is a provision seeking to oust the jurisdiction of this court.
This is a right which it acquires not dehors the Constitution, but by virtue of the
fact that it is a superior court set up by the Constitution itself. It is not necessary
for this purpose to invoke any divine or supernatural right, but this judicial power
is inherent in the court itself. It flows from the fact that it is a constitutional court
and it can only be taken away by abolishing the court itself.
In saying this, however, I should make it clear that I am making a distinction
between "judicial power" and "jurisdiction". In a system where there is a

trichotomy of sovereign powers, then ex necessitate rei, from the very nature of
things, the judicial power must be vested in the judiciary. But what is this judicial
power? It has been defined in the American jurisprudence (corpus Juris
Secundum Vol XVI, paragraph 144): "The judiciary or judicial department is an
independent and equal coordinate branch of government, and is that branch
thereof which is intended to interpret, construe, and apply the law, or that
department of government which is charged with the declaration of what the law
is, and its construction, so far as it is written law."
It went on to observe in another case (Col Shah Sadiq vs Muhammad Ashiq
2006 SCMR 276): The scheme of our Constitution is based on trichotomy of
powerIn this system of trichotomy, the judiciary has the right to interpret, the
legislator has right only to legislate and executive has to implement. The
trichotomy of powers, which is already delicately balanced in the Constitution,
cannot be disturbed as it grants powers to each organ to decide the matters in its
allotted sphere.
The Supreme Court in the case of National Insurance Corporation Limited
(NICL), taking suo moto action observed: The exercise of constitutional powers
by the High Court and the Supreme Court, under the relevant Articles, have been
categorised as power of "judicial review". Every executive or administrative
action of the State or other statutory or public bodies is open to judicial scrutiny
and the High Court or the Supreme Court can, in exercise of the power of judicial
review under the Constitution, quash the executive action or decision, which is
contrary to law or is violative of fundamental rights guaranteed by the
Constitution.
With the expanding horizon of Articles dealing with fundamental rights, every
executive action of the government or other public bodies, including
instrumentalities of the State or those which can be legally treated as "authority",
if arbitrary, unreasonable or contrary to law, is amenable to the writ jurisdiction of
the Supreme Court or the High Courts and can be validly scrutinised on the
touchstone of the Constitutional mandates.
It has become by now a well-settled global judicial norm that the apex court has
the power to act as arbiter of disputes in order to maintain check and balance.
The parameters of the court's power of judicial review of administrative, or
executive action, or decision, and the grounds on which it can interfere with the
same, are also well settled. Indisputably, if the action or decision is perverse or
such that no reasonable body of persons, properly informed; could come to or

has been arrived at by the authority misdirecting itself by adopting a wrong

approach or has been influenced by irrelevant or extraneous matters, the court
would be justified in interfering with the same.
For these reasons, the independence of the judiciary has been guaranteed and
the very preamble of the Constitution provides that the people of Pakistan and
the independence of judiciary shall be fully secured. The judiciary cannot
compromise at any cost its independence, as guaranteed under the Constitution;
as such compromises would lead us to the situation of the last so many years. It
is for the first time the judiciary asserted its authority, and as a result thereof the
democratic system is prospering in the country, despite many hick-ups.
To be continued...
The writer is a senior advocate of the Supreme Court of Pakistan.
Email:akramsheikharticles@gmail.com

Contours of SCs suo moto jurisdiction

January 06, 2012
MOHAMMAD AKRAM SHEIKH

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:i "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. "
i Same view has recently been taken in Watan Party's case (PLD 2003 SC 74).
It was a 5member 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:
i "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..."
i "The learned AttorneyGeneral 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. "
i 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.
i 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 Pakistans 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 centred 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.
The writer is a senior advocate of the Supreme Court of Pakistan.
Email:akramsheikharticles@gmail.com