Daily Times Editorial July 30, 2012

Call to judiciary Federal Law Minister Farooq H Naek these days is busy dilating on the new contempt of court law as well as the separation of powers envisaged in the constitution. The other day in Karachi, he returned to his current theme while saying that there was a public perception that the judiciary is against the PPP government. The responsibility for changing this perception, Mr Naek argued, lay with the Supreme Court. He went on to stress that decisions taken by the president, the premier and ministers were protected under Article 248 (wrongly reported in the press as Article 242) and could not be challenged. On the separation of powers schema of the constitution, the Law Minister reiterated the government’s contention that the role of running the government was the responsibility of the executive, legislation that of parliament, and ensuring implementation of the laws that of the judiciary. Naek said there was nothing in the new contempt of court law that court decisions do not apply to the prime minister or president. Immunity to them was granted by the 1973 constitution. He argued that along with an independent judiciary, an independent judicial system comprising upright judges and law officers was necessary for a free judiciary, and stressed the need for changes in the existing system without going into any details of what changes he thought were unavoidable. The government, he said, accorded due honour and respect to the judiciary and was not interested in clipping its powers. This was a direct rebuttal of some speculations in recent days that the government may ‘retaliate’ against the judiciary by curtailing its powers. At the same time, the minister went on, the government did not want any confrontation between institutions which, if they operate within their respective ambits, would strengthen democracy. Since there has been so much sound and fury (signifying misplaced concreteness) of late regarding relations between the executive and parliament on the one hand and the judiciary on the other, particularly in the context of the NRO implementation case, which has led to one prime minister being sent home and a similar sword of Damocles dangling over his successor, it may be useful to briefly revisit the provisions of Article 248: “Protection to President, Governor, Minister, etc. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a governor in any Court during his term of office.” Jurisprudence has distinguished between the immunity from criminal (and civil) liabilities of the named officials, and the liability of the federation or a province, which can be sued. The protection contained in the proviso to clause (1) extends to the person of the officials named, not to any action taken or order passed by them. The immunity is in the nature of an exception to the general rules that no one is above the law, and must be strictly construed accordingly. In the light of these clear provisions, it is inexplicable how and why the Supreme Court has been brushing aside the meaning of this Article. With the greatest respect to His Lordships, we rest our case.