Justice Minallah wades into suo motu row

ISLAMABAD:

In another twist to the political and legal debate over the controversy surrounding the case regarding delay in holding elections in Punjab and Khyber-Pakhtunkhwa, Justice Athar Minallah on Friday released his dissenting note, confirming that the Supreme Court’s suo motu was dismissed 4-3.

In February, Chief Justice of Pakistan Umar Ata Bandial had formed a nine-judge bench -- comprising himself, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Minallah -- to hear the case.

However, Justice Ahsan and Justice Naqvi had recused themselves as questions were raised on their presence on the bench.

Two more judges, Justice Afridi and Justice Minallah were said to have disassociated themselves from the proceedings as they expressed their opinion on the maintainability of the petitions on the matter.

The CJP then reconstituted a five-judge bench, which on March 1 issued a split 3-2 verdict, empowering President Arif Alvi to announce the date of the Punjab elections, while directing the K-P governor to set the polls date for the provincial assembly in consultation with the Election Commission of Pakistan (ECP).

CJP Bandial, Justice Akhtar and Justice Mazhar supported the verdict, while Justice Mandokhail and Justice Shah dissented by opposing the admissibility of the suo moto case.

Justice Mandokhail and Justice Shah, in a joint dissent note, maintained that the suo motu proceedings initiated by the CJP were “wholly unjustified” and initiated with “undue haste”.

They pointed out that Justice Ahsan and Justice Naqvi had not been removed from the bench but had voluntarily recused themselves.

They continued that the failure to count the decisions of Justice Afridi and Justice Minallah would amount to excluding them from the bench without their consent, which was not permissible under the law and not within the powers of the CJP.

“Therefore, we are of the opinion that the dismissal of the present suo motu proceedings and the connected constitution petitions is the order of the court by a majority of 4 to 3 of the seven-member bench,” the joint note read.

Justice Minallah’s note released on Friday stated that he had read the detailed reasoning of Justice Shah and Justive Mandokhail and he “agrees with their opinion, particularly regarding the final outcome of the petitions and the suo motu assumption of jurisdiction by a majority of 4 to 3 because this was the understanding in the meeting held in the anteroom on February 27.”

“It is noted that I had [neither] recused, nor had any reason to dissociate myself [from the case],” he wrote in a 23-page note, dismissing the suo motu case.

The SC judge maintained that “the manner and mode in which these proceedings were initiated have unnecessarily exposed the court to political controversies”.

“It has invited objections from political stakeholders in an already polarised political environment. The objections have also been submitted in writing. This obviously has consequences for the trust the people ought to repose in the impartiality of the court,” he wrote.

“The court, by proceeding in a premature matter, will be stepping into already murky waters of the domain of politics. It is likely to erode public confidence,” the note added.

“The assumption of suo motu jurisdiction in itself may raise concerns in the mind of an informed outside observer. In the circumstances, the rights of litigants whose cases are pending before us would be prejudiced, besides eroding public trust in the independence and impartiality of the court. This could have been avoided if a full court was to take up these cases. It would have ensured the legitimacy of the proceedings,” Justice Minallah observed.

The SC judge also raised serious questions over the dissolution of the Punjab Assembly by the PTI, noting that the court “cannot and must not appear or be seen as advancing the political strategies of political stakeholders”.

“The dissolution of the provincial legislature as part of the political strategy of the stakeholders raises questions. Is such conduct in consonance with the scheme of constitutional democracy? Is it not in itself a violation of the Constitution? Should this court allow its forum to be exploited for advancing political strategies or appear to be encouraging undemocratic conduct? Should this court not take notice of forum shopping by political stakeholders by invoking the jurisdictions of high courts and this court simultaneously?” the judge’s note continued.

Justice Minallah observed that public trust would be eroded in the independence and impartiality of the court if it appeared or was seen to encourage undemocratic norms and values.

“The court would be unwittingly weakening the Majlis-e-Shoora (parliament) and the forums created under the Constitution by encouraging political stakeholders to add their disputes to our dockets,” he added.

“The political stakeholders must establish their bona fides before their petitions could be entertained. The conduct of the stakeholders has created an unprecedented political instability by resorting to conduct that is devoid of the democratic values of tolerance, dialogue and debate,” the judge observed.

Justice Minallah continued that the  conduct of the stakeholders did not entitle them to invoke the jurisdiction of the court under Article 184-3 of the Constitution lest it was seen or appeared to facilitate or promote undemocratic values and strategies.

“It is ironic and unimaginable for the political stakeholders to involve the court in resolving political disputes, which ought to have been settled in the forums created for this purpose under the constitution,” he noted.

Reflecting on the apex court’s history, Justice Minallah highlighted the uncomfortable fact that the SC had in the past engaged in activity unbecoming of an institution of its stature.

“The long spells of undemocratic regimes validated by this court have caused irretrievable loss to the country and its people. The institutions which represent the will of the people were not allowed to take root. Even today, 75 years after the creation of Pakistan, the institutions remain weak,” the judge lamented.

Justice Minallah observed that the country was on the brink of political as well as constitutional crises and it was high time that all those responsible resorted to some introspection.

He continued that all the institutions, including this court, needed to set aside their egos and strive towards fulfilling their constitutional obligations.

“Speaking for my institution, it is obvious that we may not have learnt any lessons from our past bleak history. We cannot erase the judgments from the law reports but at least endeavour to restore public trust and confidence so that the past is forgotten to some extent. When politicians do not approach the appropriate forums and bring their disputes to the courts, the former may win or lose the case, but inevitably the court is the loser,” he observed.

Justice Minallah highlighted that the political crisis had “escalated when, after losing the vote of confidence, [PTI Chairman] Mr Imran Khan chose not to take the exalted seat of leader of the opposition and decided to resign from the membership of the National Assembly along with other members belonging to the PTI”.

“The resignations were tendered but their acceptance by the speaker was delayed. The strategy had profound consequences for the political process and constitutional democracy of Pakistan,” he added.

“As a political strategy, resignations en masse were tendered from the National Assembly, rather than discharging their constitutional obligations as members of the opposition. The constitutional courts were first approached to compel the speaker to accept the resignations and when they were accepted the courts were again approached to have the decision reversed,” Justice Minallah noted.

Commenting on the SC majority decision on the interpretation of Article 63-A of the Constitution, the judge noted that “the political ramifications of this declaration were profound in a highly charged and polarised political atmosphere. A review against the judgment was sought and the petitions are pending before this court”.

Justice Minallah regretted that the apex court “exercised jurisdiction under Article 184-3 to legitimise the removal of elected prime ministers and endorse military takeovers”.

The judge regretted that the framers of the Constitution had inserted Article 184-3 in it intending that the jurisdiction shall be exercised to ensure that the fundamental rights of the weak, vulnerable and marginalised classes were protected.

“This court handed down the judgment in Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657) to validate the imposition of martial law, based on the doctrine of necessity, while exercising its original jurisdiction and it lasted for a decade despite the timeframe committed to it,” he added.

“The deposed prime minister [Zulfikar Ali Bhutto] was convicted and sent to the gallows after his appeal was dismissed by this court by a majority of 4 to 3. During the trial the appellant had filed an application because he had reservations on the constitution of the bench,” Justice Minallah observed.