ISLAMABAD: Chief Justice of Pak­is­tan (CJP) Umar Ata Bandial on Fri­day wondered whether the parliament could be expected to make a “self-serving legislation” when it’s in a “transitory period and the elections have to be held”.

“We are the guardians of the Constitution and it is not a joyful enterprise for the courts to do legislation instead or show over activism. But we have to protect the Constitution, the constitutional machinery and the rule of law,” observed the CJP.

The observation came during the hea­ring of a challenge by Pakistan Tehreek-i-Insaf chairman and former prime minister Imran Khan, through his counsel Khawaja Haris Ahmed, to rec­ent amendments made to the Nat­ional Accountability Ordinance (NAO).

Headed by the CJP, the three-judge Supreme Court bench that heard the case has Justice Ijaz-ul-Ahsan and Justice Syed Mansoor Ali Shah as its other members.

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“These are not ordinary times but exceptional times where the erstwhile ruling party was not performing its duties since it has boycotted out of the parliament while the beneficiaries were amending laws,” regretted the CJP.

Justice Shah wondered if the court should bother about the political temperature outside and asked which forum the people should approach to seek remedy if they were upset in case NAO was completely repealed in future.

Senior counsel Makhdoom Ali Khan, who appeared on behalf of the federal government, replied by citing that the United States Supreme Court always followed the latest election results, meaning they stood with the government in power while deciding constitutional cases.

‘Greater burden on courts’

In a society or a country where the parliamentary process was not working properly and when the fundamental rights were suspended, then there was a greater burden on the courts, but a different approach had to be taken if the democratic and constitutional dispensation were functioning smoothly, the counsel argued.

He cited a number of examples to show that the Supreme Court in the US had changed its views over the years on issues like death sentence, abortion and in the flag salute case, saying resolution of controversies should be confined always to the parliamentary forums instead of allowing them to be decided on the streets.

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“We are conscious of the fact,” the CJP observed, adding the court should not enter the political thicket “but we also have to take into view the fundamental guarantees to the citizens like due process, fair trial and fairness in the criminal judicial process”.

The court postponed further proceedings until Sept 1 when Khawaja Haris said he had recovered from Covid only the other day and therefore could not submit a concise statement in time.

The right forum

Answering the questions raised in the petition, Makhdoom Ali Khan in a statement explained that the forum to enact or oppose the enactment of statutes was parliament. Politicians might succeed or fail in the parliament in pursuit of their objectives and those frustrated could take their appeal to people, he said, adding that was their right but the remedy for their grievances was not with courts.

The counsel emphasised that courts could judge the constitutionality of statutes but could not test a statute on the criteria of a particular political outlook or a moral viewpoint or a philosophical approach.

He argued that if followed, the route suggested by the petitioner would lead straight to the political thicket, adding that [courts should] always resist or avoid being embroiled in such disputes.

The counsel emphasised that the petitioner lacks locus standi and bona fide to move the present petition since the amendments of similar nature were made through ordinances in the NAO during the petitioner’s term as the prime minister. It is thus clear that this petition does not raise constitutional but political questions, the counsel said, especially when the apex court has repeatedly held that it does not decide political questions.

He argued that a statute cannot be struck down on the basis of principles of policy, objectives resolution and Article 2A of the constitution, especially when the petition seeks to create an impression that the offence of corruption has been abolished by the amendment, which is incorrect and that the legislative intent is clear in the amendments.

Published in Dawn, August 20th, 2022