#Pakistan - An open letter to the Chief Justice on disruptive impact of suo motu notices

Imtiaz Gul

Honourable Chief Justice of Pakistan! On June 22, we were on our way to Kabul for an important Track II meeting with Afghan counterparts and officials. Former Defence Secretary General (retd) Asif Yasin Malik was also part of the delegation. To his utter shock, Mr. Malik was told by the FIA staff at the airport that the he was on the Exit Control List (ECL). The ECL bar on him related to a PIA-related corruption case, and the instruction for putting all previous PIA top tier managers on the ECL had been issued several weeks ago. The general had never been informed in writing about the decision, so he agreed to accompany our peace delegation to Kabul, only to face the embarrassment of being denied the peace journey to Kabul in the presence of dozens of curious onlookers.

Honourable CJ,

It is indeed heartening to see you pursue cases of graft and mis-governance across Pakistan, even on Saturdays and Sundays. Only a patriot can devote so much time for such a noble national cause and dare the mighty ruling elites in an unprecedented way.

But the ripples your mission is generating at times go against the fundamentals of the division of authority and power within a state. At times, it also entails unwanted, unpleasant consequences , engulfing even innocent citizens, and that too, without informing them in writing or otherwise. It is the fundamental right of every citizen to be informed in writing, or otherwise, if a state organ is taking a legal action against that person. In our particular case, Gen.(r) Malik was never informed about the decision.

As you deploy the Article 184(3) and relentlessly issue suo moto notices, your support staff is probably not informing you of the disruptive impact these notices are having on governance-related issues. Officials are reluctant in taking decisions they must take in the public interest. Police are shy in performing their primary function i.e. preventing mobs or criminals from breaking the law for fear of being called out by the august court.

What has happened to the dozens of cases involving people like Sharjeel Memon, Dr.Asim Husein, Ishaq Dar, Fawad Hassan Fawad, Ahad Cheema or the property tycoons, or even the drivers of DHAs? Almost all are currently on your radar because of suo motu notices, but with little impact on the standing of these people. They are contesting and winning elections (Ishaq Dar, for example) or thriving in their businesses (real estate).

Do you really hope to pin them down with current criminal laws, particularly when even the ATC trials take years to conclude, instead of the mandatory three-month period?

Does the Supreme Court recognise that its own bar members flagrantly violate and exploit the laws that you, my lord, are a guardian of? Wouldn’t it be a great service to the public to first go for a reform of the Criminal Procedures Code (CrPC)?

Wouldn’t you want to go down in history as a CJ who instituted mechanisms for all lawyers so they cannot avoid and evade taxes after pocketing hefty fees? Given the long history of pendency, does the court or its affiliates such as NAB have the capacity to address and take to logical end all the suo motus you have taken?

One way of effectively taking care of issues under suo motu would be to avoid unnecessarily overburdening an already stretched law enforcement organ of the state. Instead of taking up newer cases, the judiciary would do a great service if it could logically conclude suo motu cases it is already seized with, and showcase a few case studies to underline its crusade against corruption.

The best service the honourable court can do to the people of Pakistan is to reform the sector, which the elites exploit through amenable lawyers to get off the hook i.e. CrPC, and the Code of Civil Procedures. By reforming the CrPC, CCP and the bar under its nose, the Supreme Court will probably eternally endear itself with the people of Pakistan.