Beyond the law

Published May 20, 2022

THE senior judiciary should take care not to overreach in its zeal to ‘fix’ issues it ideally need not worry about. On the advice of a fellow judge, the chief justice has taken suo motu notice of alleged interference by powerful individuals in several ongoing criminal cases, as well as media reports of changes being made to accountability laws. The court fears that such interference in the legal system can affect the constitutional requirements of fair trial and due process, apart from “eroding the confidence of the people in the rule of law and constitutionalism in the country”. The suo motu seems to have been prompted by the Federal Investigation Agency’s continued failure to indict Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Shehbaz in a multibillion-rupee corruption case. Initial proceedings on the suo motu on Thursday saw a bar placed on any transfer and posting of officials involved in “high-profile” NAB and FIA cases, as well as notices being sent to federal and provincial authorities to report on the cases they are prosecuting. The court also expressed concerns about the names of “thousands” of individuals being taken off no-fly lists. While conducting the hearing, Chief Justice Umar Ata Bandial justified the suo motu as a measure to “protect the criminal justice system and the rule of law”.

The court’s concerns indicate that it has been feeling at least some pressure from the series of relentless attacks on its credibility by former prime minister Imran Khan. The chief justice’s reasoning for the suo motu, in this context, seems to reflect a desire in the senior judiciary to reassert its non-partisanship in matters of public interest. As far as the court wants to protect the legal system from unconstitutional interference or influence, it seems within its rights to do so. However, the court need not concern itself with defending NAB or the existing accountability laws. In the 2020 judgement in the Paragon City case, the Supreme Court itself had excoriated NAB for its patently unlawful, unjust and politically-driven agenda. The legislature should be allowed to fix those deficiencies if it is doing so fairly. There has already been much criticism of the apex court’s recent short order in the Article 63A case, which is being viewed as the judiciary unilaterally ‘rewriting’ the Constitution. The court should avoid another controversy arising from any further transgression in the legislature’s domain.

Published in Dawn, May 20th, 2022

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