Supreme Court won’t seize executive authority: CJP Justice Umer Ata Bandial

ISLAMABAD: The Chief Justice of Pakistan, Umer Ata Bandial, said on Thursday that the court cannot exercise executive authority but can request it to uphold its legal obligations.

A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah, heard the petition filed by the former prime minister and Tehreek-i-Insaf Chairman Imran Khan, challenging the amendments made by the coalition government to the National Accountability Ordinance (NAO) 1999.

During the hearing, Chief Justice Umer Ata Bandial said that the court cannot exercise the powers of the executive but can ask it to fulfil its responsibilities enshrined in the Constitution.

“We will not seize the executive authority,” the CJP stated, “but we want the executive to function, fulfilling its obligations under the law and the Constitution.” The CJP said: “We are empowered to exercise our original jurisdiction under Article 184(3) of the Constitution to ensure fundamental rights, and suo moto provides us with the best opportunity to do so.”

The chief justice questioned if the NAB amendments were overturned because they violated the fundamental rights, and how the old law would be reinstated. Justice Syed Mansoor Ali Shah said that the court had set aside many steps taken by the executive and that many apex court judgments were there. “Your client is concerned about restoring provisions that were removed as a result of the amendments made to the NAO law under challenge,” Justice Shah told Khwaja Haris.

Khwaja Haris, counsel for the PTI, submitted that under the amendments, the powers of the NAB dealing with the illegal source of income had been clipped, adding that before the changes, the NAB was empowered to take action against the cases related to illegal income through the amnesty scheme. Khwaja Haris claimed that the amnesty scheme was only intended to convert black money into white money.

“Suppose if any amnesty scheme turns out to be fraudulent; can such cases be referred to other courts?” Justice Mansoor Ali Shah asked. “The amnesty scheme is right, but so far as the criminality aspect is concerned, it’s not being looked into under the amendments made to the NAB law,” Khwaja Haris replied.

Justice Mansoor Ali Shah said that there was an impression that if someone gets benefits, he will go scot-free. Still, the fact is that there are other laws about the accountability of persons having allegations of making money through illegal means. A complainant can file a case against any accused.

“The accountability courts take such cases off their hands and return the references to the NAB after amendments to the law,” Khwaja Haris responded. The counsel for the PTI recalled that the apex court had interfered and given directions in many cases, adding that the court had directed a constitutional Joint Investigation Team (JIT) in the famous NICL case.

Similarly, Khwaja Haris submitted that the apex court had also given directions to the government in the Bank of Punjab case when the authorities concerned were prolonging the matter. He submitted that this court had also directed parliament to make legislation on the appointment of Chief of the Army Staff (COAS) besides holding an investigation through the JIT in the fake accounts case as well.

“This court had secured the fundamental rights of the people in many cases,” Khwaja Haris submitted, adding that there was no NAB law and this court had issued directions for making laws as well.

Justice Mansoor Ali Shah said that people would then come to the courts, complaining that the government cannot perform its duties, so please run the government. “People would come to the court for redressal of the issue only if there is a constitutional crisis and there is a glaring issue of fundamental rights,” Khwaja Haris responded.

Justice Mansoor Ali Shah said that if everything is to be done by courts, then would not that be an interference in the domain of the executive? “Can the judiciary play a super role in the failure of the executive?” Justice Mansoor Ali Shah questioned.

“If a prime minister could not run a government and if people came to the court asking for the assurance of fundamental rights, would the court run the government?” Justice Shah further asked the learned counsel.

“Your lordship is to protect the Constitution and ensure basic fundamental rights,” Khwaja Haris replied. However, Justice Mansoor Ali Shah again asked the counsel if the court, in ensuring the protection of fundamental rights, could cross the line dividing powers.

At this, the chief justice said that they will not assume the executive domain but can ask it to render its constitutional role and ensure the fundamental rights of the citizens. Later, the court adjourned the hearing until next Monday, when the PTI counsel will continue his arguments.