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Suo motu: justice as panacea?

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18.01.2019

The sun has set on Mian Saqib Nisar’s legacy as the Chief Justice of the Supreme Court of Pakistan. Under his leadership, we saw judicial activism unlike anything seen even during the era of the former Chief Justice Iftikhar Chaudhry. More importantly, we saw suo motu, a rather obscure Latin term, become synonymous with our legal character. Never before in our constitutional history did we see the lofty expectations regarding law and justice from the Supreme Court that we see today.

On a broader scale, we can see our society polarized between two schools of thought or shall I say, extremes. On the one hand are the populists who see the Supreme Court as proverbial nervous system of our body politic and the panacea or cure for all executive excesses and failings. For them, the Supreme Court registers our national pain and summons its powers under Article 184 (3) of the constitution in matters of “public importance” with reference to the enforcement of “fundamental rights”. They see the judge as the proverbial knight, riding the stallion of constitutional authority, who slays the specter of political digression and moral decay, thus saving us from further sliding into the abyss of darkness.

Then we have those who prefer a literal interpretation of the constitution and subscribe to the separation of powers under the constitution amongst the three organs of the state: executive, legislature and judiciary. Rejected by the proponents of this school of thought is the “vacuum theory” i.e. the indispensability of court intervention through suo motu when the other organs of the state have failed to perform their constitutional role. Unchecked suo motu activism is thus seen as an encroachment on the authority of the other organs of the state and a judicial reimagining of infinite........

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