SUO MOTO JURISDICTION AND DOCTRINE OF TRICHOTOMY IN PAKISTAN

Received: 13.05.2021; Revised: 09.07.2021, Accepted: 30.07.2021, Published Online: 31.08.2021

Aisha Rasool

Principal Law College, Green International University, Lahore

Dr. Muhammad Asif Khan

Associate Professor, Department of Law, NUST, Islamabad

Shaista Kundi

Assistant Professor, Law, Abdul Wali Khan University, Mardan

Johar Wajahat

Assistant Professor Department of Law, Shaheed Benazir Bhutto Women University, Peshawar

Fazli Dayan

Assistant Professor, Department of Shariah & Law, Islamia College University Peshawar

Kamran Abdullah

Lecturer Law, Islamia College University Peshawar.

Atiq-Ur-Rehman

Ph.D. Scholar, Department of Communication & Media Studies, Gomal University, D.I.Khan

ABSTRACT

The Constitutionalism, Rule of Law and Trichotomy of a State is questioned whenever its apex Court moves by Suo moto.[i] This jurisdiction has been conferred upon Supreme Court of Pakistan whenever a case meets two-pronged test which has been enunciated in Article 184(3) of the Constitution of 1973, involving (a) the Violation of fundamental right and (b) matter of public importance. After meeting this two-pronged test, the Jurisdiction of Supreme Court may well be safely assumed under the limits of sky and the chief justice of Pakistan, in the absence of any formal petition/proceedings on the basis of a letter, news item or a TV report can initiate judicial proceedings against any individual, institution or any other branch of the government, literally about any issue. The suo motu campaign was initiated with the advent of the critical judicial era of Justice Iftikhar Muhammad Chaudhry, the former chief justice of Pakistan, more particularly after his re-coronation with Lawyers’ Movement of 2007-2009. CJ Saqib Nisar took it to another level. Nonetheless several other chief justices showed restraint.[ii]

However, this concept backed by Constitutional provision is being criticized by many legal experts, jurists and political bodies considering it a threat to Rule of Law and Constitutionalism. It also has an effect on the separation of powers among Three different branches of government and hence affects the trichotomy of the state. This article primarily emphasizes on the grant of Suo moto Jurisdiction to the Supreme Court of Pakistan, its effect on the Trichotomy of state and correspondingly, it also focuses upon the disseminating impressions by the actions taken by the Supreme Court in form of suo motu over certain significant communal disputes as the suo motu action influence have a recognizable power on the fundamental right. Moreover, it also imparts the jurisprudential view to Article 184(3) of Constitution of 1973 in granting suo moto jurisdiction while commentating on its textual absence in the mentioned Constitutional provision. It also highlights whether suo moto is a procedural requirement and may be used as a tool for Public Interest Litigation or not.

Keywords; Suo moto, Original Jurisdiction of Supreme Court, Constitutionalism, Trichotomy, Separation of Powers, Fundamental rights, Public Importance, Judicial restraint.

[i] Ahrar Javed, The Hypothetical Separation of Powers in Pakistan

[ii] The power of suo moto, Opinion Muhammad Waqar Rana September 03, 2021