“THE facility of suo motu may no longer be available,” remarked Justice Amin-ud-Din Khan. It was a quiet comment, dropped not with alarm but with the composure of someone watching an era slip gently away.

But there is little quiet about what it truly signals: not procedural modesty, not democratic maturity, but a cold and deliberate retreat. A judiciary once imagined as the final sentinel of rights now appears content to fold its robes, clasp its hands, and wait.

Let us not forget what Article 184(3) was designed to do. It was not built to serve the powerful. It was not sculpted for the whims of the bench. It existed so that the voiceless — the disappeared, the dispossessed, the disenfranchised — could be heard even when they lacked the strength to shout. When no one else would act, the court could. That was the moral architecture behind suo motu.

And yes, it needed fixing. Suo motu was used erratically, sometimes politically, and too often without restraint. But the answer was never abandonment. The answer was reform. Regulate the criteria. Make reasons for taking cognisance. Institute appellate oversight. But do not quietly watch as the most important judicial power in our constitutional order is procedurally euthanised.

This institutional deadening did not happen overnight. It was slow, bureaucratised, wrapped in the velvet glove of reform. Earlier, the Supreme Court Practice and Procedural Act, 2023 clipped the chief justice’s powers, constituted a three-member committee consisting of the chief justice and the two most senior judges, and granted the right to appeal. Last year, the 26th Constitutional Amendment, touted as a step towards balance, simply codified hesitation.

Therefore, within the judiciary, clarity is no longer a virtue. Justice Muhammad Ali Mazhar has remarked that since suo motu is a constitutional provision, it must now be exercised through the constitutional bench.

Even though the 26th Amendment explicitly states that the constitutional bench shall exercise original jurisdiction, a hypothetical risk still remains embedded in the constitutional design. It fails to address whether the same procedure — introduced through earlier amendment — will continue to apply.

Will it now be exercised solely on the authority of the head of the constitutional bench? And more importantly, if the procedure is so clear, why did Justice Amin-ud-Din Khan feel compelled to make his remark? The 26th Amendment, in its eagerness to limit discretion, has instead created a jurisdictional paradox — a court that may have the power, but not the means, to act.

When no one else would act, the court could.

But before this sleepwalking becomes doctrine, let us remember the path we strayed from.

In ‘Darshan Masih vs the state’, the court broke new ground by recognising that the Constitution demanded action even in the absence of formal petitioners. It was a time when the court, flawed as it may have been, stood tall.

Today, the jurisprudential tide has turned inward. We are told that restraint is a virtue. That neutrality is nobility. But when power consolidates, when dissenters vanish, and when laws twist into weapons, neutrality becomes complicity.

Elsewhere in South Asia, the story unfolds differently. In India, Articles 32 and 226 empower the courts to issue writs without formal procedure. In Bangladesh, where the constitution doesn’t explicitly allow suo motu, the judiciary carved its own path through what it called constitutional transplantation, inspired by India’s Public Interest Litigation regime.

In both countries, courts embraced a moral reading of their role, recognising that justice must not be held hostage by procedural orthodoxy. And yes, the path has been uneven, sometimes misused, but never muted. Pakistan, meanwhile, codifies caution.

This is not to romanticise judicial activism. But it is to say: rights cannot wait for consensus.

And even on a more theoretical level, suo motu has always been used to keep the executive in check. So, if judicial activism is exercised within reasonably guarded metrics, there is no trade-off between rights and democracy. In fact, on the contrary, it may add to the beauty of it.

What Justice Amin-ud-Din Khan has said, and what the court now risks endorsing, is not just legal regression. It is a human one. It tells those who have no voice that even the court — their last recourse — has put up a sign that reads: ‘come back later’.

But history does not wait. It watches. And one day, it will ask why the court, in its ceremonial wisdom, let go of the one power that allowed it to stand between the citizen and the leviathan. Not to decide outcomes. Not to dictate policy. But to ensure that when the Constitution cried out, someone was still listening.

Let us not count this silence as wisdom. Let us name it for what it is: abdication.

The writer is a lawyer.

Published in Dawn, May 14th, 2025