Judicial divide: SC split widens over election rigging plea

Legal experts say CJ Isa intent on technical merits, ‘ignoring to see the forest for the trees’

ISLAMABAD:

The discord among Supreme Court judges has deepened as Justice Athar Minallah raised concerns over the delay in addressing the Pakistan Tehreek-e-Insaf (PTI) petition probing alleged rigging in the recent general elections.

Justice Minallah observed that if the elections were not genuine, the judges themselves might be violating their oaths.

During the hearing of a reserved seats case, Justice Minallah urged the counsel for the Election Commission of Pakistan (ECP) to provide details of complaints about the lack of a level playing field during and after the elections. “We cannot sit in a bubble,” he asserted.

However, Chief Justice of Pakistan (CJP) Qazi Faez Isa disagreed, stating that this issue was not part of the current proceedings.

Tensions came to a head when Justice Syed Mansoor Ali Shah questioned how the ECP declared PTI-backed candidates as independents, underscoring the court’s duty to protect citizens’ voting rights. CJP Isa, citing Article 5(2) of the constitution, insisted that everyone must strictly adhere to the law and constitution.

He remarked on how individuals often become attorney generals and ministers under military dictatorships.

Justice Minallah replied, claiming that the constitution is not being upheld today, noting that everyone is aware of the current situation. He went on to criticise the court for burying its head in the sand and ignoring grave violations.

He highlighted the importance of the pending petition on alleged irregularities in the February 8 general elections and it’s known to everyone.

Following his remarks, the bench took a break.

Last week, PTI counsel Hamid Khan filed an application for the early hearing of the petition regarding alleged election rigging.

‘Enough is enough’

Regarding the court proceedings, Lawyer Abdul Moiz Jaferii commented that some judges have decided that enough is enough and are tired of seeing the people’s mandate subverted.

He said that CJP Isa was clearly intent on technical merits while ignoring to see the forest for the trees, pointing out that the CJP was doing it despite having in the past taken great interest in suo moto actions concerning tree cutting and WhatsApp forwards.

“Why he is showing conservatism about taking a holistic approach to investigating the collusive designs of the state concerning the elections is beyond any rational explanation?” he questioned.

Jaferii expressed disbelief at how a judge could respect the ECP after recent events.

“I cannot understand how a judge can after witnessing the events of the past few months, declare that the election commission is worthy of respect when being referred to,” he added.

He further said that when there are such vastly different positions available on the bench, there is bound to be friction. When the members of the bench opposing you are some of the brightest legal minds in the country, temperatures can rise further”

“I was astonished to see the aggression the ECP lawyer showed towards some members of the bench today. That could not be possible without leeway given by the CJP. It is unfortunate that it has come to this. But there are painful processes in every evolution,” Jaferii added.

Some lawyers argue that Justice Minallah should not raise questions about the pending petition on alleged rigging in the case of the reserved seats, as his inquiries may escalate tensions.

Judges were visibly divided on the six Islamabad High Court (IHC) judges’ letter regarding agency interference in judicial functions. Justice Minallah completely disagreed with CJP Isa on handling this issue.

A PTI lawyer commented their primary interest is to halt the current government’s plans for a constitutional amendment concerning superior court judges. This proposed amendment could impact members of the full court, and the lawyer argues that the case proceedings should be viewed in this context.

The full court judges have a duty to strengthen the Supreme Court. It would be ideal if efforts were made to reach a unanimous decision in the reserved seats case.

Since the presidential reference against Justice Isa in May 2019, the Supreme Court has been divided into camps. This division was also evident in the Supreme Court Practice and Procedure Act 2023 case.

There was an expectation that differences among Supreme Court judges would diminish following the retirement of Justice Ijazul Ahsan and the removal of Mazahar Ali Akbar Naqvi.

However, some judges, particularly Justice Minallah, who were previously close to CJP Isa, have disagreed with his approach to handling the six IHC judges’ letter issue.

A segment of the superior courts is vocal about alleged rigging, human rights violations, and executive agency interference in judicial functions. However, they have not received an endorsement from CJP Isa.