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5.30.2010

Dominic Nardi on Pakistan's Judiciary: Suo Moto Tango

The Indian Supreme Court has become prominent (or notorious) amongst comparative constitutional law scholars for its judicial activism. However, if anything, the Pakistani judiciary has gone even further in finding creative ways to support public interest litigation (PIL). Under Article 184(3) of the 1973 Constitution, the Supreme Court has original jurisdiction over petitions to enforce fundamental rights. In order to encourage PIL, the Court waives locus standi requirements and filing fees. It has even initiated PIL cases through its suo moto jurisdiction.

Environmental PIL in Pakistan began rather modestly, with most claims limited to a particular case or controversy. However, in 1994, it received a boost when Dr. Parvez Hassan, a leading environmental lawyer, helped residents file a complaint against a proposed power grid station. In Shehla Zia v. WAPDA, the Supreme Court read a right to a clean and healthy environment into Article 9 of the Constitution, which protects the right to life.

After Shehla Zia, the Judiciary became a central actor in environmental policymaking. Courts often engage in a “rolling review” over implementation of Pakistan’s Environmental Protection Act. They also utilize commissions composed of government officials, businessmen, and environmentalists to resolve scientific questions and formulate policy. For example, in 2003, in Syed Ali Mansoor Shah v. Government of Punjab, the Lahore High Court established the Lahore Clean Air Commission in response to a petition against vehicular emissions. LCAC recommended introducing EURO II CNG buses; phasing out two-stroke rickshaws; and setting ambient air quality and vehicle emission standards within three years.

Perhaps even more astounding, the Supreme Court has issued orders suo moto to remedy environmental problems that come to its attention. In the mid-1990s, Justice Saleem Akhtar convinced the Court to issue an injunction against the dumping of chemical waste off a coastline in Balochistan – after reading about the problem in a local newspaper. The justices also demanded information on anybody who owned property near the coastline and inserted conditions into their leases against dumping waste.

In one recent case, Lahore Conservation Society v. Government of Punjab, the Chief Justice Iftikhar Muhammad Chaudhry (better known for his opposition to General Musharraf) ordered a halt to a road-expansion project after reading letters to the editor complaining about the logging. The Court first requested more information from the Chief Secretary of Punjab. Subsequently, several environmental lawyers filed suit. This past March, the Chief Justice ordered that no trees could be cut and asked the government to present alternatives.

While the Court’s concern for the environment is admirable, critics accuse it of exercising its suo moto jurisdiction arbitrarily. The power to exercise suo moto lies solely with the chief justice of each court. Justices seem particularly keen on causes that do not receive much attention from the government but are popular with the public, such as urban waste and crime. However, their information often comes from anecdotal evidence in the media, not through a systematic review. Some environmental lawyers have called for guidelines to clarify when courts can exercise suo moto jurisdiction.

Suo moto jurisdiction also raises larger questions about the sustainability of judicialized policymaking. Courts lack the technical capacity to formulate long-term environmental policy. Furthermore, by assuming such a pronounced role, judges might inadvertently atrophy the capacity of executive agencies. For example, when suo moto cases arise within their jurisdiction, some provincial EPAs become reluctant to take any action for fear that they might invoke contempt of court proceedings.

Given its recent history, Pakistan’s judiciary is in a fairly unique political position. However, it would be interesting to see how many other courts around the world have exercised suo moto jurisdiction on a regular basis to address public grievances. I would be certainly interested in hearing about other cases of suo moto activism in the comments section below.

--Dominic Nardi

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