Introduction:

The Supreme Court of Pakistan has been expressly empowered under Article
184 of the Constitution to take such action for the enforcement of any of the fundamental rights
conferred by chapter-I, Part-II. The self-evidently lucid article of the constitution establishes
mere permissibility of suo moto action invoking its original jurisdiction by the Supreme Court. It
is significant to notice that it establishes permissibility and does not mandate or make it
obligatory for the Supreme Court to do so in specific cases. But the question of exercise of such
power for the enforcement of fundamental rights coupled with its public importance is left to the
good conscience of the Supreme Court to determine keeping in view the jurisdictional facts of
each such case.

Article 184 of constitution of 1973.

(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction
in any dispute between any two or more Governments.

Explanation.-In this clause, “Governments” means the Federal Government and the
Provincial Governments.

(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall
pronounce declaratory judgments only.

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of any
of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power
to make an order of the nature mentioned in the said Article.

Original Jurisdiction in disputes of states

The Supreme Court, to the exclusion of every other Court in Pakistan, has the
jurisdiction to pronounce declaratory judgments in any dispute between the Federal Government
and a provincial government or between any two or more provincial governments. The Supreme
Court also has the power to make any appropriate order necessary to ensure the protection and
provision of fundamental rights.

Nature of Suo moto And Public Interest Litigation

The Latin term suo moto literally means “on its own motion” and is approximately
equivalent to the term sua sponte which means “of his, her, its or their own accord”, describing
an act of authority taken without formal prompting from another party. Hence, the logical and
semantic absurdity of demanding suo moto action should be obvious in a modern-day legal
system. But at the same time, the exercise of it by the honorable judges has significantly a more
fundamental and qualitative aspect. The mechanism of suo moto notice enables the Supreme
Court to filter down benefits of the constitutional guarantees of the fundamental rights to the
lowest strata of society.
In fact, if one looks at the preamble of the constitution it expressly emphasizes that
sovereignty belongs to Almighty Allah alone and the state power is a sacred trust to be exercised
by the chosen representatives of the people. One of the foremost principles of trust power since
times immemorial is that the power ultimately belongs to the beneficiaries and could only be
exercised in their best interest and for their welfare.
As stated by the Court in the case of Benazir Bhutto v Federation of Pakistan:
"The plain language of Article 184(3) shows that it is
open-ended. The Article does not say as to who shall have the right to move the Supreme Court
nor does it say by what proceedings the Supreme Court may be so moved or whether it is
confined to the enforcement of the Fundamental Rights of an individual which are infracted or
extends to the enforcement of the rights of a group or a class of persons whose rights are
violated."

Significance and enforcement of constitutional rights

The significance of the fundamental rights guaranteed by the constitution to the citizens
of Pakistan if they cannot have access to an enforcement mechanism provided by the laws of the
country? The assurance given by the constitution of equal protection of its laws in return for
unquestioned obedience and loyalty withers off if these rights are not enforceable and are merely
an illusion in reality.

Inherent empowerment of Supreme Court

Article 184 of the Constitution empowers the Supreme Court to perform its duties and
obligations as guardian of these fundamental rights for their enforcement and ensure that lowest
of the low benefits from the constitutional guarantees covenanted by the founding fathers in
Articles 4 and 5. In a series of judgments, the Hon’ble Supreme Court has already outlined the
various aspects of the power thus granted.
In the State Vs. Ziaur-Rehman (PLD 1973 SC 49) Court observed that
“So far, as this Court is
concerned it has never claimed to be above the Constitution nor to have the right to strike down
any provision of the Constitution. It has accepted the position that it is a creature of the
Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will
even confine itself within the limits set by the Constitution which it has taken oath to protect and
preserve but it does claim and has always claimed that it has the right to interpret the
Constitution and to say as to what a particular provision of the Constitution means or does not
mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.
This is a right which it acquires not de hors the Constitution but by virtue of the
fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose
to invoke any divine or super-natural right but this judicial power is inherent in the Court itself. It
flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing
the Court itself.
In saying this, however, I should make it clear that I am making a distinction
between “judicial power” and “jurisdiction”. In a system where there is a trichotomy of
sovereign powers, then ex necessitates rei from the very nature of things the judicial power must
be vested in the judiciary. But what is this judicial power? It has been defined in the American
Jurisprudence (Corpus Juris Secundum Vol.XVI, paragraph 144) as under:-
“The judiciary or
judicial department is an independent and equal coordinate branch of Government, and is that
branch thereof which is intended to interpret, construe, and apply the law, or that department of
Government which is charged with the declaration of what the law is, and its construction, so far
as it is written law.”
It went on to observe in another case ‘Col. Shah Sadiq Vs. Muhammad
Ashiq 2006 SCMR 276’.
That “The scheme of our Constitution is based on trichotomy of
Power………………………..In this system of trichotomy, the judiciary has the right to interpret,
the Legislator has right only to legislate and executive has to implement. The trichotomy of
powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants
powers to each organ to decide the matters in its allotted sphere.”

Intended focus of the article 184:

The intended focus of this article is twofold.
 The provision of Constitutional guarantees.
 The protection and enforcement of such constitutional guarantees.

This puts it in a position of acting with greater responsibility while discharging

its foremost duty as a trustee of the Judicial State Power. The matters of concern for other limbs
of the state, which are quite often highlighted in national and international discourse, could be
dealt with by laying down a Criteria to be strictly adhered to. Therefore, it becomes imperative to
comment on the genesis of the power to take up matters suo moto, and the need to clearly and
vividly demarcate the parameters of such exercise so that not only can there be benchmark
precedence, but also to address any constitutional concerns arising out of the oft-repeated
separation of powers criticism.

Guidelines from other common law jurisdictions may also be instrumental for
the Supreme Court to define the province of its suo moto powers. The objective, as important as
ensuring complete justice for all and sundry, must always to be maintained. Certainty and clarity
in the law, and recognition of the independence of the functions of the different limbs of the state
shall ward off malafide criticism by hoodwinkers and would expose their self-centered Criticism.
There is also a need for listing clear exceptions to the general rule of exercise of this judicial
power so as to seriously register once and for all, for the information for everyone, where the
Supreme Court shall exercise restraint in issuing appropriate writs.
It is, therefore, of great importance that in order to continue discharging of an
imperative mandate of the constitutional obligations as guarantees of fundamental rights, the
Apex Court lays down broad contours and parameters of exercise of this most pivotal jurisdiction
conferred upon it by virtue of being the sole repository of judicial power of the state. This shall
also obviate the oft-repeated rhetoric of transgression of the trichotomy of power guaranteed by
the Constitution.
 Protection of individual freedoms can only be possible if the executive and the
judiciary exercise their powers complementary to each other, and not overlapping, and the
combination of individual liberty with a due observance of law is only to be obtained by leaving
each to exercise its own function, always, of course, subject to the right of the Court to intervene
in appropriate cases.

Contours of Supreme Court’s Suo-moto/Original Jurisdiction

When the Supreme Court exercises its jurisdiction under Article 184-3 it is not the
affluent class or the bulk of influential class of people, which provides impetus to the Apex
Court for the exercise of its suo moto power, but it is the silent multitudes whose benefit it is
employed for. Therefore, the constitution mandates that this power is exercised in matters of
public importance. This concept has been defined in the following case:
PLD2004SC583 (Mian Muhammad Shahbaz Sharif Vs. Federation of Pakistan)
The abstract of judgement as follows:-
“The issues arising in a case cannot be considered as a question of public
importance if the decision of the issues affects only the rights of an individual or a group of
individuals. The issue in order to assume the character of public importance must be such that
its decision affects the rights and liberties of people at large. The adjective ‘public’ necessarily
implies a thing belonging to people at large, the nation, the State or, a community as a whole.
Therefore, if a controversy is raised in which only a particular group of people is interested and
the body of the people as a whole or the entire community has no interest, it cannot be treated as
a case of public importance.”
The same view has recently been taken in Watan Party’s case ‘PLD 2003 SC
74’. It was a five-member Bench judgment to which one of us (Nazim Hussain Siddiqui, now
Chief Justice) was a party, wherein reliance was placed on Manzoor Elahi’s case and the above
view was endorsed. For facility of reference, the relevant observations in the latter case are
reproduced below:--
“Now, what is meant by a question of public importance. The term `public’
is invariably employed in contradistinction to the terms private or individual, and connotes, as
an adjective; something pertaining to, or belonging to the people, relating to a nation, State or
community…”
“The learned Attorney-General is clearly right in saying that a case does not
involve a question of public importance merely because it concerns the arrest and detention of
an important person like a Member of Parliament. In order to acquire public importance, the
case must obviously raise a question, which is of interest to or affects the whole body of people
or an entire community. “
Powers of the High Court to issue Orders and Directions.
The Constitution of 1956 had expressly recognized the ‘Writ jurisdiction’ of the
High Court in its Article 170 and had classified the ‘Writ’ as writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Under that Article, the High
Court was given the power to issue these ‘writs’ to any person or authority including any
Government. The present Constitution (1973) has made no mention of ‘writs’. Instead of it, it
gives the High Court the power to give directions and orders. It is, therefore, obvious that it has
substituted the word ‘order’ or directions, for ‘writs’ of various kinds mentioned above. In fact,
this change is in keeping with the changes in the British Judicial system, in which ‘writs’ of the
various kinds have been abolished. The reason is that these ‘writs’ had become so restricted in
their meanings and application that they did not meet the needs of the developing and complex
society of the present times. The term ‘orders’ or ‘directions’ are so wide and flexible as to be
applicable to all needs and changes in the present day life. However, we have continued to use
the term ‘writ’ to means these orders and directions, because of its past use and convenience.

Article 199 of the Constitution

The High Court may

(a) on the application of any aggrieved party, make an Order:-

(i) directing a person performing in the Province functions in connection with the
affairs of the Federation, the Province or local authority to refrain from doing that
which he is not permitted by law to do, or to do that which he is required by law
to do, or
(ii) declaring that any act done or proceedings taken in the Province by a person
performing functions in connection with that affairs of the Federation, the
Province or a local authority has been done or taken without lawful authority ,
and is of no legal effect; or
(b) on the applicati0on of any person make an order:-
(i) directing that a person in custody in the Province be brought before the High
Court so that the Court may satisfy itself that he is not being held in custody
without lawful authority or in an unlawful manner; or
(ii) requiring a person in the province holding or purporting to hold a public office to
show under what authority of law he claims to hold that office.

(c) On the application of any aggrieved person, make an order giving such directions to any
person or authority including any Government exercising any power or performing any
function is or in relation to, any territory within the jurisdiction of the court as may be
appropriate for the enforcement of any of the Fundamental Rights.

Subject to the constitution, the right to move a High Court for the enforcement of the
Fundamental Rights cannot be abridged.

The nature of cases which the high court can take cognicance

It is clear from the article 199 that the High Court has the power to issue orders in five
kinds of cases.

1. Where a public servant or office has done something which he is not permitted by
law to do or has failed to do that which he is required by law to do.
2. Any act done or proceeding taken by a person without lawful authority.
3. He has held someone in custody without lawful authority or in an unlawful
manner.
4. He holds an office for which he has no authority of law to do so, and
5. Any person of authority, including the government violates any of the
Fundamental Rights.

It should be noted that the High Court will make these orders only on the application
of an aggrieved party or person and not of its own account, even if a matter of injustice otherwise
comes into its knowledge. But in the third category of cases, relating to unlawful arrest and
custody application can be made by any person. Moreover, the High Court will issue these orders
only when it is satisfied that no other adequate remedy is provided to the aggrieved person or
party by law. Furthermore, this order issuing power of the High Court can be exercised in those
cases in which any officer or agency of the Federal Provincial or Local Government has done or
not done something under the law, as the case may be.

Restrictions on the jurisdiction of the High Courts (Article 199 (3-5)):

Three restrictions have been placed on its writ jurisdiction.

1. If the petitioner applies to the Court for an interim order against the proceedings
taken by these officers, and such an interim order would prejudice or interfere with the carrying
out of a public duty or is harmful to the public interest, the High Court will not make such an
order without first giving a notice of application to the law officers of the Federal of Provincial
Government, that is, to the Attorney-General or the Advocate General respectively, and after
hearing them. This restriction has been placed so that the work of the Government departments
and officers may not be unnecessarily obstructed by the stay orders or interim orders of the High
Court on the application of private citizen.

2. Persons in the Defence Services of Pakistan cannot apply for the ‘writs’ or orders
of the High Courts. Their jurisdiction has been expressly barred by the Constitution to the
matters pertaining to the Defence Services are under the discipline of military laws and have
military courts to regulate their discipline, which will be weakened under the ‘writ’ jurisdiction.

3. The High Court cannot make an order on the application of person, employed in
the Civil Services of Pakistan in respect of the terms and conditions of his service, except when
he is dismissed by a subordinate authority other than the appointing authority or when he is
dismissed without showing of the action taken against him. This provision is made to ensure
efficiency and discipline in the Civil Service of Pakistan.

Under Article 199 of the Constitution, the provisions are commonly known as
writs:-
(1) Mandamus, (To give an order or direction). The aggrieved person can

file writ petition.

(2) Certiorari, (To set aside illegal/unconstitutional order that has been

passed). The aggrieved person can file writ petition.

(3) Prohibitions, (To forbid to work which is not done as yet – Stay

Order). The aggrieved person can file writ petition.

(4) Habeas Corpus, and (To bring the person before the Court).

Aggrieved or any other person can file writ.

(5) Quo Warranto (Under what authority you are holding the public

office). Aggrieved or any other person can file writ.

Objectives of Writs

a. To maintain supremacy of the Constitution.

b. To establish Rule of Law.

c. To ensure the governance is according to law to protect rights of the people.

d. To control abuse of power in order to control authorities.

e. To control the abuse of discretionary powers.

f. To maintain independence of judiciary.

g. To protect and enforce fundamental rights.

h. Expeditious and inexpensive justice.

Case Law

Badar-ul-Haq Khan Versus Election Tribunal Dacca

The following conditions were given in the case:-

1. No other adequate remedy is available,

2. Action of the public authority should be without authority.
3. Writ can be field against Public Functionary for his official
actions.
 Aggrieved party approaches to the court in Quo-warranto, Mandamus,
Prohibition and Certiorari.
Case Law

Public Small Industries Limited Versus Ahmad Akhtar Cheema

2002 SCMR 549

1. The court held that if an alternative remedy is available it must be

exhausted first.

2. If there is a self-contained statute then that remedy should be exhausted

first.

 Law of limitation does not apply on writ petitions but not inordinate delay

(reasonable time).

 Case Law (Writs)

1. Anwar Shaukat Versus Federation of Pakistan

1981 PLC 15

It was held that all officials’ acts and orders must be in writing for the
purpose of not only reference and record but also responsibility and
accountability.

2. Ghulam Dastgir Versus Salah-ud-Din

PLD 1987 Lahore 39

It was held that the constitutional jurisdiction under Article 199 is subject
to other provisions of Constitution and cannot be exercised in derogation of
Article 225 which contains prohibition that validity of election could not be called
in question except the proc3edure provided in the law.

3. Daud Versus Jamil-ur-Rehman

PLD 1985 Quetta 29
It was held that Supreme Court, High Court and military Tribunals have
been excluded from the definition of word ‘person’ in Article 199.
4. Sabir Shah Versus Federatioin of Pakistan
PLD 1994 Supreme Court 738

It was held that even if impugned act or action have been protected by a
constitutional provision by ouster clause, the superior court still have the
jurisdiction to interfere with three categories of cases namely:

a. Without jurisdiction
b. Coram Non-judice and
c. Malafide actions

5. Capri Cinema Versus Government of Sindh

1985 CLC 1766

It was held that in order to constitute a person “an aggrieved person”

within the ambit of Article 199 it is not necessary that he should have in strict
juristic sense particular rights but it is sufficient that he should have personal
interest in the performance of legal duty which if performed in manner not
permitted by law would result in loss of some personal benefit or advantage to
him.

Conclusion:
The spirit of the Constitution might demand that the Supreme Court’s jurisdiction
should be exclusive in such matters. It is not proper, that a court lower than the
Supreme Court should decide such questions. The Supreme Court should be given
exclusive jurisdiction in controversies concerning the distribution of legislative
powers, which have an all-Pakistan repercussion. For example, if a State law
imposing a tax on, say, the assignment of copyright, is challenged by a publisher,
the decision (of a court other than the Supreme Court) upholding or invalidating
the State law, may have an impact which far transcends the frontiers of the
particular State in which the decision is pronounced. Similar questions can arise
in other States. Uniformity of approach is the first desideratum in regard to such
questions. Besides this, if the matter is allowed to be decided by, say, the High
Court and thereafter taken (if necessary) by appeal to the Supreme Court, the
process would be time-consuming and most inconvenient. In the intervening
period, there is bound to prevail considerable confusion and uncertainty; and
serious inconvenience would be occasioned thereby.A reasonable interpretation
should, therefore, be placed on article 131 of the Constitution and the Supreme
Court should be regarded as having exclusive jurisdiction, if a question involving
the distribution of power arises, and at least one of the parties is a Government.
The accidents of litigation, and the question whether the point arises between two
Governments or between Government and other parties, should not be regarded as
conclusive.