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On March 31st 2023 the upper house of the Parliament of Pakistan passed one of its most important legislatures. The Supreme Court (Practice and Procedure) Bill 2023 was passed unanimously by the Senate after having been passed by the National Assembly a day earlier.
The law passed, has cut down he arbitrary powers of the Chief Justice of Pakistan’s suo moto powers.
WHAT IS THE SUO MOTO AND WHY IS IT FEARED
Article 184 (3) of the Constitution of Pakistan provides that if the Supreme Court considers that a question of public importance with regard to the enforcement of the fundamental rights of citizens of Pakistan exists, the Supreme Court shall have the power to make any order of the nature mentioned in the said Article.
So theoretically what it means is that if the Supreme Court of Pakistan thinks that a problem exists with regard to the fundamental rights of citizens, the Supreme Court will seize of such matter or take notice of it and then pass an appropriate order.
Theoretically there is no problem since the architects of the Constitution probably wanted to provide the citizens of Pakistan as much protection as they could. Practically since 2010 this hidden gem has in the hands of one gung-ho chief justice after another become a toy.
The other day I was watching cartoon series with my son titled “the ant bully”. The cartoon is about this kid who loves killing ants and every day invents a new way to kill them and torture them. I thought of the suo moto powers of the Supreme Court! Since 2010 we have all been ants for one ant bully after another and their toy has been the systematic abuse of the suo moto powers.
For me my introduction to the suo moto started with the Reko Diq matter. Iftikhar Chaudry the Chief Justice of Pakistan from 2005 to 2013 is the one who discovered the amazing powers of 184 (3). It’s a mystery whether he stumbled on it himself one day reading the constitution or it was brought to his attention by an over enthusiastic intern at the Supreme Court. Given Mr. Chaudry’s fondness or rather lack of it I think an intern probably brought it to his attention.
Anyway to cut a long story very short, Mr. Chaudry ran with 184 (3) and up till March 2023 successive chief justice’s did the same.
Taking notice of the single largest mining investment to be ever made in Pakistan and putting a stop to it, stopping Karkey from settling its dispute amicably with Government of Pakistan, putting a stop to the privatization of the steel mills, taking notice of a high rise apartment building and having it knocked down, removing an elected Prime Minister from office for something as notional as not having received a salary from his son to at times taking notice of a bottle of alcohol found in the suitcase of a famous actress. My Lords really had their fun, sadly at the expense of the entire nation.
CLIPPING THE POWERS OF THE SUO MOTO
It was finally last month when the Chief Justice decided to take suo moto notice of elections not being conducted in province of Punjab that the sitting government decided to do something about the suo moto powers.
Under the law clipping the Chief Justice’s powers, a committee comprising three senior-most judges of the apex court would decide on the suo motu notice, while there would be a right to file an appeal within 30 days of the suo motu decision.
The appeal has to be fixed for hearing within 14 days of filing and after the taking of a suo motu notice, the hearing will be conducted by a three-judge bench, the bill added.
It continued that the decision of the majority in the matter would be acceptable to all.
After the passage of the law, no decision of the SC or high court, or any other legislation would be able to affect it.
Under the additional amendments, the right of appeal would be available in pending cases, while the bench constituted on constitutional as well as legal matters would comprise at least five judges.
GOOD NEWS
This is excellent news for foreign investors and businessmen. You cant work in a country if you have to continuously look over your shoulder for a gung ho Chief Justice waiting to notice you and your investment and then make an example of you. Laws already exist for doing that.