ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday observed that the judiciary cannot assume the role of the executive even though the suo motu jurisdiction provided the top court an opportunity to look into matters involving breach of fundamental rights.

The apex judge made these remarks during the hearing of a case pertaining to amendments in the National Accountability Bureau (NAB) law challenged by the Pakistan Tehreek-i-Insaf (PTI) chairman through his counsel Khawaja Haris Ahmed.

“This is the reason the court waited so that a senior counsel, like Khawaja Haris Ahmed, could come up with a petition challenging the amendments in the National Accounta­bility Ordinance (NAO),” CJ Bandial observed, hinting that the court was not interested in suo motu notices anymore.

The observation of the top judge was in response to remarks made by Justice Syed Mansoor Ali Shah who asked the counsel that “could the judiciary stand up and say that from now on they will run the affairs of the executive since the government has gone rogue and the entire legal system has broken down, with good laws becoming ineffective”.

Justice Shah asks if court could encroach on govt’s domain on plea of citizen

“If the executive fails, could the judiciary interfere and say that parliament is making wrong amendments,” Justice Shah observed, also asking could a citizen approach the judiciary with a plea that his fundamental rights had been breached since the government was not behaving properly.

Khawaja Haris retorted that the judges had taken an oath to stand against the violation of the Constitution and the breach of fundamental rights.

‘Encroachment on executive’s domain’

At this, Justice Shah asked whether a citizen could approach the judiciary and ask it to encroach on the domain of the executive by claiming that the prime minister was a “thief” and that the government was “not functioning in accordance with the law”. He added, “I am unable to comprehend where it stops,” observed Justice Shah.

According to the SC judge, it was bothering him that even though “the judges have taken an oath to protect fundamental rights, [but] could we take it to a level where we transgress the concept of separation of powers between the executive and the judiciary as envisaged by the Constitution”.

But the senior counsel reminded the court that the judiciary had interfered in the past and cited the Bank of Punjab case. Justice Shah responded that the Supreme Court on a number of occasions repealed a law for being contrary to the Constitution, but the present case was “unique” since the petitioner was asking the court to restore the clauses to the law repealed by the government.

Justice Shah also asked that in light of the amendments, NAB laws might not be “too harsh but could an accused still be slipped away instead of being tried under different laws, like Banking laws”.

The counsel, however, reminded that in corruption cases, the state was the complainant and conceded that the government could file the case again by invoking other jurisdictions.

He argued that after the changes to the NAB law, the accused in different cases had been acquitted without any trial for the charges framed on the basis of facts.

The counsel contended that the state should secure the assets and national wealth and public money for the benefit of the people by ensuring that representatives of the people of Pakistan, who were trustees of these assets, remain accountable by way of criminal prosecution for any breach of the trust.

However, such a guarantee cannot be secured by introducing weak accountability laws or by tampering with laws in a manner that makes it impossible to prove corruption and corrupt practices, since this would give a free hand to the holders of public office to get away with all acts of embezzlement, he added.

Published in Dawn, November 11th, 2022