-Supreme Court’s Judge Justice Athar Minallah says Suo motu on Punjab, KP elections was dismissed by 4-3
-Observes legitimacy of court depends on public’s belief that SC is independent, impartial, apolitical
-Laments ‘Suo Moto used to legitimise removal of elected PM and endorse Military takeovers’
-Asks should courts be seen as ‘advancing political strategies or encouraging undemocratic conduct?’
-Info Minister claims CJP has now become controversial
-Terms Supreme Court’s Suo Motu verdict as an issue of Bench fixing instead a matter of elections in Punjab
Staff Report
ISLAMABAD: The Pakistan Democratic Movement (PDM)-led government in the centre has demanded Chief Justice Umar Ata Bandial step down as the top judge after Supreme Court Justice Athar Minallah’s hard-hitting note that not-ed the suo motu on the delay in holding polls in Khyber Pakhtunkhwa and Punjab was dismissed 4-3.
In her press conference, Minister for Information and Broadcasting Marriyum Aurangzeb said: “Chief justice has now become controversial. Therefore, the chief justice should resign.”
The crisis persists as the demand comes a day after the National Assembly passed a resolution rejecting the three-member Supreme Court bench’s “minority” verdict on the Punjab elections and made it binding on Prime Minister Shehbaz Sharif and his cabinet not to implement the decision.
The information minister said that when the court’s proceedings become controversial and even the judges of the top court refused to accept the judgement — then how will the people accept the verdict.
“Justice Minallah neither separated nor rescued himself from the bench,” Marriyum said citing the judge. “It is not a matter of elections but an issue of “bench fixing”, she added.
“Justice Minallah note is a question mark,” she also said. Without naming PTI Chairman Imran Khan, the info minister said that it was not acceptable for them when a Constitu-tion breacher is facilitated by the judiciary.
Berating the judiciary, Marriyum said that PTI leader Asad Umar was heard by the court but it refused to listen to the 13 other political parties.
Referring to the SC’s verdict on elections in Punjab, she said: “You are interfering in the powers [jurisdiction] of par-liament.” She added that parliament will decide about the elections, not Imran Khan.
Article 63-A(1)(b) of the Constitution was rewritten to facilitate ‘ladla’ [Khan], the minister said, adding, “Controversial judges were included in the three-member bench.” She said that no political party ever evades elections, but the polls should be held on the completion of constitutional tenure of the assemblies and at the same time across the country and should not be susceptible to the whims of any individual.
Justice Minallah was among the judges who rejected the suo motu notice taken by the CJP regarding the delay in polls in KP and Punjab on the advice of an SC bench hearing the Ghulam Mehmood Dogar case.
Controversy surrounding the Supreme Court’s verdict on Punjab elections took another turn after Justice Athar Minal-lah, in his detailed order, stated that the case was dismissed by 4 to 3 and clarified that “he had not recused nor had any reason to dissociate himself” from the case.
Justice Minallah stated that he agreed with Justice Yahya Afridi’s note on the dismissal of the petition and his reason-ing in the short order was “persuasive” therefore he had no “hesitation in concurring with the decision”.
“I had reiterated my decision by recording my note in the order dated 24.02.2023. I have had the privilege of reading the detailed reasoning recorded by my learned brothers, Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJs and I agree with their opinion, particularly regarding the final outcome of the petitions and the suo motu assumption of ju-risdiction by a majority of 4 to 3 because this was the understanding in the meeting held in the anteroom on 27.02.2023. It is noted that I had not recused nor had any reason to dissociate myself,” said the judge in his detailed note.
Justice Minallah was among the judges who rejected the suo motu notice taken by the Chief Justice of Pakistan (CJP) Umar Ata Bandial regarding the delay in polls in Khyber Pakhtunkhwa (KP) and Punjab on the advice of an SC bench hearing the Ghulam Mehmood Dogar case.
Earlier, CJP Bandial had formed a nine-member bench to hear the suo motu case.
Two of the nine judges recused themselves from the case, while four — Justice Syed Mansoor Ali Shah, Justice Jamal Khan Mandokhail, Justice Yahya Afridi, and Justice Minallah — had dismissed the case.
In his note, Justice Minallah emphasised that “public trust and confidence” are “sacrosanct” for the judiciary to oper-ate effectively.
“The legitimacy of the court’s verdict solely depends on the public’s belief that the Court is an independent, impartial, and apolitical arbiter of disputes between political stakeholders,” said the judge. He also explained that the issue of elections in Punjab and Khyber Pakhtunkhwa was political and was being adjudicated by a high court.
The judge noted that the Supreme Court has remained at the centre stage of an “unprecedented charged and polar-ised political milieu” since April of last year when the former National Assembly deputy speaker dissolved the lower house.
The judge noted that Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan’s decision to leave the National Assembly had “profound consequences”. He noted that with that decision President Arif Alvi invoked the Supreme Court’s advi-sory jurisdiction for the interpretation of Article 63-A.
The former Islamabad high court chief justice stated that the verdict in the Article 63-A case of disregarding votes had a “profound” impact in a “highly charged and polarised political atmosphere”. He also noted that the review of the case was pending as well.
“The effects of the interpretation of Article 63A on the ensuing events were far-reaching for the polarised political stakeholders,” said Justice Minallah.
Justice Minallah argued that while Article 184(3) had been inserted in the Constitution to “ensure that the fundamen-tal rights of the weak, vulnerable and marginalised classes are protected,” the jurisdiction was “exercised to legitimise the removal of elected prime ministers and endorse military takeovers.”
He then cited the cases of Begum Nusrat Bhutto vs Chief of Army Staff and Federation of Pakistan, Zafar Ali Shah vs General Pervez Musharraf — which were used to remove elected prime ministers — and mentioned that Syed Yousaf Raza Gillani and Nawaz Sharif too were disqualified from office under Article 184(3).
Such moves in the realm of politics and unregulated invocation of suo motu jurisdiction, the justice said, had invited criticism on the “moulded public perceptions which were indeed not favourable for public trust and confidence”.
He further clarified that the jurisdiction under Article 184(3) was vested in the “Supreme Court” — which collectively means the CJP and the judges of the court.
“The power under Article 184(3) is inherent and exclusively vests in the Supreme Court”. He stated that it was the duty of the CJP to exercise the jurisdiction in the best interest of the Supreme Court.
Moreover, emphasising the responsibility of the CJP and the courts to maintain to ensure that the jurisdiction under Article 184(3) is exercised to promote and preserve public trust, he wrote that the discretionary powers of the CJP are not “unfettered”.
The justice also stressed that the court “must not allow any stakeholder to use its forum for advancing its political strategy or gaining an advantage over other competitors”.
If political stakeholders are encouraged to bring their disputes to the courts despite having institutions and forums which have been formed by the Constitution for the express purpose of resolving the dispute, not only is the Parlia-ment weakened, but also adversely impacts the public perception of the judiciary.
