On Friday, Justice Athar Minallah of the Supreme Court (SC) released a detailed note on the proceedings of a suo motu notice regarding the delay in holding provincial elections in Khyber Pakhtunkhwa and Punjab. This development adds another twist to the ongoing issue of the elections in the country.
According to Justice Minallah’s note, the case was dismissed by a vote of 4-3. This means that four of the judges on the panel voted against the motion, while three judges were in favor of it.
The suo motu notice was initially taken by Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on February 22. The reason for this notice was a perceived “lack of clarity” on the matter of holding elections in Punjab and Khyber Pakhtunkhwa.
In relation to the suo motu case on the delay in holding provincial elections in Khyber Pakhtunkhwa and Punjab, Justice Athar Minallah has expressed his agreement with the dissenting note penned by Justices Syed Mansoor Ali Shah and Jamal Khan Mandokhail.
He believes that the court must always exercise “extreme restraint” when dealing with matters involving political stakeholders.
Moreover, Justice Minallah has raised concerns regarding the dissolution of provincial assemblies, questioning whether such conduct is in line with the principles of constitutional democracy. These comments indicate a cautious approach towards political matters and a desire to uphold democratic values.
Meanwhile, the government has called for the resignation of Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial, stating that he has become “controversial”. This demonstrates the political tension surrounding the issue of provincial elections.
To address the matter, Justice Bandial has constituted a nine-member 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.
This panel will hear the case and make decisions based on the principles of justice and democracy.
On February 27, the Chief Justice of Pakistan (CJP) divided the larger bench into a five-member bench. The Supreme Court (SC) issued a written order on February 23 when Justice Jamal Mandokhail had objected to the initiation of the proceedings under Article 184(3).
In the Feb 27 order of the bench, signed by nine judges, it was stated that the matter was referred back to the CJP after considering the Feb 23 order, additional notes attached by four judges, and discussions made in the anteroom of the apex court.
In response, the CJP reconstituted the bench comprising himself, Justice Shah, Justice Akhtar, Justice Mandokhail, and Justice Mazhar.
On March 1, in a 3-2 verdict, the SC directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP.
The majority verdict, given by CJP Bandial, Justice Akhtar, and Justice Mazhar, allowed the ECP to propose a poll date that deviates from the 90-day deadline by the “barest minimum”, in case of any practical difficulty.
However, Justice Mandokhail and Justice Shah dissented with the ruling. In a joint dissent note, the two top court judges said that the suo motu proceedings initiated by the CJP were unjustified and initiated with undue haste.
They also noted that the reconstitution of the bench was merely an administrative act to facilitate the further hearing of the case by the remaining five members of the bench and could not nullify or brush aside the judicial decisions given by the two Hon’ble Judges in this case.
They argued 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 is not permissible under the law and not within the powers of the Hon’ble Chief Justice”.
In their opinion, 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.
Justice Minallah’s Comprehensive Note
Justice Minallah has presented a detailed note, spanning 25 pages, highlighting various case proceedings that took place since the dissolution of the assemblies in January. The note also references the Lahore High Court’s verdict on February 10th, in which the ECP was ordered to announce the election date for Punjab immediately.
Justice Minallah noted that petitions were filed to reinforce the LHC’s order by seeking contempt of court proceedings. However, the Supreme Court had “no reason to doubt the ability and competence” of the former, and Justice Yahya Afridi had dismissed the petitions on the ground of maintainability.
In the hearing held on February 23rd, a separate note was recorded by Justice Yahya Afridi, which was included in the written order. Justice Minallah found the reasoning recorded in the short order to be persuasive, and he concurred with the decision regarding the dismissal of the petitions.
Justice Minallah also expressed his agreement with the opinion of his learned brothers, Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJs, particularly regarding the final outcome of the petitions and the suo motu assumption of jurisdiction by a majority of 4 to 3.
He made it clear that he had not recused nor dissociated himself from the decision.
Regarding Article 184(3) of the Constitution, which concerns matters of public importance, the judge emphasized that the invocation of jurisdiction under this article and the exercise of discretion relating to the constitution of benches and fixation of cases were crucial in maintaining public trust and confidence.
He added that the process of constitution of benches and allocation of cases must be transparent, fair, and impartial. Extreme restraint must be shown in matters involving political stakeholders, and the court must not allow any stakeholder to use its forum for advancing its political strategy or gaining an advantage over other competitors.
Justice Minallah stressed that it was the duty of the court to ensure that political stakeholders do not bring their disputes to the courts for judicial settlement by bypassing the institutions and forums created under the Constitution.
Doing so would weaken Parliament and the forums meant for political dialogue and harm the judicial branch of the state by prejudicing public trust in its independence and impartiality.
Furthermore, he stated that this approach encourages political stakeholders to shun the democratic values of tolerance, dialogue, and settlement through political means. The court has a duty to prioritize the more than fifty thousand litigants whose cases are awaiting a decision on its docket over the political stakeholders, who are under an obligation to resolve their disputes in the political forums through democratic means.
Justice Minallah also raised objections to the suo motu notice and emphasized that premature and preemptive proceedings before this court at this stage are likely to delay the enforcement of the LHC judgment.
He noted that the manner and mode in which these proceedings were initiated have unnecessarily exposed the court to political controversies and invited objections from political stakeholders in an already polarized political environment.
In addition, the judge expressed concerns about the conduct of political stakeholders, emphasizing that the political climate in the country was so toxic that it was inconceivable for political parties to even agree to a dialogue, let alone arrive at a consensus.
He raised questions about whether the dissolution of the provincial assemblies, as part of a political strategy, was in consonance with the scheme of constitutional democracy, and whether it was a violation of the Constitution.
He asked whether the court should allow its forum to be exploited for advancing political strategies or appear to be encouraging undemocratic conduct.
Finally, he questioned whether the court should not take notice of forum shopping by political stakeholders by invoking the jurisdictions of high courts and this court simultaneously.
Justice Athar Minallah has stated that the court must not be seen as furthering the political strategies of any political stakeholders, as it will undermine the public’s trust in the court’s independence and impartiality.
He criticized the conduct of political stakeholders, saying that they have created unprecedented political instability by resorting to conduct that is devoid of democratic values like tolerance, dialogue, and debate.
Justice Minallah further stated that such conduct does not entitle them to invoke the jurisdiction of the court under Article 184(3) of the Constitution, as it would promote undemocratic values and strategies.
He also expressed concern that political stakeholders are involving the court in resolving political disputes that should be settled in forums created for that very purpose under the Constitution.
He stressed that political stability is a precondition for economic progress and prosperity of the people, and the power struggle between political stakeholders is undermining the welfare and economic conditions of the people of Pakistan.
Justice Minallah stated that the institutions which represent the will of the people were not allowed to take roots, and even today, 75 years after the creation of Pakistan, the institutions remain weak. He called for all institutions, including the court, to set aside their egos and strive towards fulfilling their Constitutional obligations.
Regarding the judiciary, Justice Minallah stated that it is obvious that lessons may not have been learnt from Pakistan’s bleak history.
He urged the court to restore public trust and confidence, so that the past is forgotten to some extent. He also criticized the politicians who do not approach the appropriate forums and bring their disputes to the courts, as it ultimately causes the court to lose.
Justice Minallah’s statement comes after the top court ruled that the election commission’s decision to postpone polls to the Punjab Assembly till Oct 8 was unconstitutional.
The verdict created an uproar in the country’s politico-judicial circles, and questions have been raised about the CJP’s suo motu powers over the last few weeks.
The Supreme Court (Practice and Procedure) Bill 2023 was passed by the Senate last week. Its main goal is to strip the chief justice of the power to take suo motu notice individually.
Government Urges Chief Justice of Pakistan to Resign
Following the verdict, Information Minister Marriyum Aurangzeb held a press conference in Islamabad, calling Justice Minallah’s note a “major decision”.
She claimed that Justice Minallah agreed with his fellow judges and declared the case to be inadmissible, stating that a verdict could not be issued on a matter that had been dismissed by the majority.
The information minister also stated that the CJP had become “controversial” and should resign. Similarly, Interior Minister Rana Sanaullah and PML-N Senior Vice President Maryam Nawaz called on the chief justice to resign, citing serious questions about his conduct and bias raised by judges of “impeccable repute”.
In contrast, PTI leader Fawad Chaudhry stated that Justice Minallah had accepted the principle of holding elections within 90 days, but he also criticized Minallah’s ruling as a “mediocre judgement by all standards” in a separate tweet.
Meanwhile, PTI’s Shireen Mazari expressed disappointment in Justice Minallah’s note, saying that he had written more of a political statement than a judicial note.