THE judicial conference held in Islamabad over the weekend ended with an important declaration read out by Supreme Court Chief Justice Tassaduq Jillani which, among other things, sought to define the scope of the superior judiciary’s suo motu powers. Suo motu, of course, has become a household term in Pakistan thanks largely to the Iftikhar Chaudhry era. So expansive had the court’s interpretation of fundamental rights become by the end of that era that suo motu powers were invoked to seemingly push the judiciary into whichever arena it liked — with little concern for the separation of powers and the proper scope of fundamental rights. The much-needed correction was always likely to only begin after Mr Chaudhry went home and that has in fact proved to be the case with Chief Justice Jillani far more circumspect in wielding his suo motu powers.

What though is the proper scope of suo motu powers to protect the fundamental rights of the citizenry? The easy cases, those that clearly merit exclusion, can and were summed up in the declaration: one, ensuring that the “exercise of judicial powers neither hampers nor stunts executive policies”; and two, keeping front and centre “the sanctity of the people’s trust in the legislature to legislate” when exercising judicial review. Legalese may not lend itself to easy understanding sometimes, but it is reasonably clear that issues such as ‘Memogate’ or the review of the superior judiciary appointment process that led to the 19th Amendment ought to be off limits. As the declaration rightly indicated, not every action or choice of the executive should be justiciable – how exactly were fundamental rights of Pakistanis at stake in a discredited memo sent to the US government, for example? — and the elected legislature’s right to legislate should only be examined, let alone overruled, in circumstances where legislation is obviously and unquestionably infringing on constitutionally guaranteed fundamental rights. Under the latter formulation, judicial review of the Protection of Pakistan Ordinance would not only be sensible but also desirable, whereas questioning a constitutional amendment to lay out a fairly open and transparent process for the appointment of superior court judges would be neither sensible nor desirable.

Yet, in the day-to-day applicability of suo motu powers, it is perhaps the declaration that “the superior courts may not exercise a roving and supervisory role to ensure fundamental rights are complied with” that is the most important. The judicial conference got the actual problem right: it is the subordinate judiciary that needs to be strengthened, so that justice is delivered at the local level, rather than relying on the necessarily selective right of a high court or Supreme Court judge to intervene in, say, a rape case. While such interventions make the superior judiciary popular, they can in fact impede the systematic delivery of justice.