The moment we hear the phrase public interest litigation in Pakistan, the landmark case Shehla Zia v Wapda (PLD 1994 SC 693) pops up in our mind, which expanded the meaning of the word ‘life’ used in Article 9 of the Constitution. The suo motu powers exercised by the Supreme Court of Pakistan under Article 184 (3), has a double edge sword effect, having a positive and negative impact on society and the performance, sanctity, and credibility of the Supreme Court. On the one hand, the excessive and unbridled exercise of this provision defeats the very purpose of this article – enforcement of the Fundamental Rights. However, on the other hand, non-use or barely exercising this article to avoid the wrath and criticism of media and legal community also raises the questions on the performance of the functioning of the Supreme Court as the custodian of Fundamental Rights. Therefore, article 184 (3) has significance in the constitutional and political spheres of Pakistan.

Whereas the Constitution of Pakistan grants numerous Fundamental Rights enshrined in Chapter 1 Part II of the Constitution to its citizen, Article 184 (3) directly empowers the judiciary to enforce Fundamental Rights. The landmark case, i.e., Shehla Zia got fame in the constitutional history of Pakistan, for the reason it had enhanced the scope and meaning of life, from merely animal life to a respected human life. The former Chief Justice of Pakistan, Mr Tassaduq Hussain Jilani, by invoking Article 184 (3), gave a vital judgment wherein guidelines have been given to ensure minority rights.

The courts are the creatures of the Constitution, and they have to keep themselves within the framework of the law and constitution. Thus the phrase ‘in accordance with the law and Constitution’ is used to limit the courts to function within the parameters predetermined in accordance with the principle of separation of powers. In our checkered constitutional history, the courts had moved beyond their prescribed code, and some articles of the Constitution used to be exercised on the personal wishes and ambitions of the Chief Justices of Pakistan. The over-exercise article 184 (3) has faded away from the meaning of Public Interest Litigation and left the civil society, which supports the PIL, confused on the excessive exercise of the suo motu powers. The previous Chief Justice surpassed all the limits by making surprise visits to hospitals, checking markets, and determining the fee structures of private school to name a few of his quixotic adventures.

Nevertheless, there are numerous cases in our constitution history, wherein the application of 184 (3) had produced very positive results in terms of enforcing Fundamental Rights. Shehla Zia, Coal mining, crushing stones and protecting minority rights are a few glaring examples of rightly invoking this article and resultantly enhanced the confidence of the masses on the superior courts. The obvious reason is that the superior courts exercised their jurisdiction very carefully and cautiously; this is the reason that every segment of society commends these judgments. Furthermore, such decisions become a source of applause in the comity of the nations, where we are signatories to various international conventions, where our representatives market Pakistan as a responsible state by quoting these judgements as policies of the Pakistani state. On the other hand, Pakistan is facing penalties of billions of dollars in the ICSID on Karkey and Reko Diq due to the unwise exercise of suo motu.

The Supreme Court as an institution rectifies the wrongs committed by any of its pater familia, for instance, the current CJP is reversing the actions and decisions of the former CJP Mian Saqib Nisar – the last reversal was school fee regulation by the SC. The SC Lahore Registry, under the former CJP used to give the picture of ‘Sunday Bazar of Justice’ wherein hundreds of poor peoples gathered to seeks justice against the executives and other goons of the society. The poor peoples did not know that this film will be over very soon. On the legal and technical side, the apex court was virtually bulldozed by the personal ambitions of the last CJ. In one of the events, he insulted a member, Additional Sessions Judge, of his fraternity when he publicly insulted him in the open court by throwing his mobile phone away. No one ever expected such a rowdy display of anger from the CJP. Has anybody seen such behaviour by the head of the Army in the country, against his own jawan? The answer is clear and big No.

One of the negative impacts of unbridled exercise of article 184 (3) is that that it snubs political movement when the government or its prime ministers are dismantled. As a result, the role of political parties become non-existent in the society because the oppositions parties feel good to take the case against any government in supreme court under article 184 (3) to achieve the desired political objectives. Therefore, the Supreme Court, once and for all, has to devise a rule of business for exercising the article 184 (3) in such a manner that can ensure the maintenance of balance. Doing so will guarantee that this article is used carefully for protection of the fundamental rights of the Pakistani citizens as enshrined in the Constitution of Pakistan, and not let their political rights bulldozed.