Justice Athar Minallah maintains that the Suo motu on Punjab, Khyber Pakhtunkhwa elections was dismissed by 4 to 3

ISLAMABAD, April 07 (SABAH): Justice Athar Minallah maintained on Friday that the Supreme Court of Pakistan’s suo motu notice over the delay in the announcement of provincial assembly elections was dismissed by a majority 4-3 ruling.

The apex court had issued orders maintaining that the court was split 3-2 on March 1 and empowered President Dr. Arif Alvi to announce the date of the Punjab Assembly elections, while directing the Khyber-Pakhtunkhwa (KP) governor to set the election date of the provincial assembly in consultation with the Election Commission of Pakistan (ECP).

According to the latter interpretation, Chief Justice Umar Ata Bandial, Justice Munib Akhtar and Justice Muhammad Ali Mazhar supported the verdict, while Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah dissented by opposing the admissibility of the suo moto case.

The ruling has since been marred by conflicting interpretations, notably with CJ Bandial defending the orders and the government terming it a “minority ruing”.

This ambiguity was not created by the government or any other party involved in the case but the top court judges themselves through their order. It was witnessed that the suo motu proceedings in the matter exposed severe rift within the SC judges.

At the outset of the hearing in February, Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi had recused themselves as questions were raised on their presence on the bench.

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

Justice Athar Minallah on Frida) has stated that he has read the detailed reasoning of Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail and that 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 not recused nor had any reason to dissociate myself,” he said in a 25-page note dismissing suo motu case regarding the announcement of the polling date of the Punjab Assembly.

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.

“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 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” he wrote.

“It would have ensured the legitimacy of the proceedings,” Justice Minallah lamented.

The SC judge also raised serious questions over the dissolution of the Punjab Assembly by the Pakistan Tehreek-e-Insaf (PTI) saying 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? This court cannot and must not appear or be seen as advancing the political strategies of political stakeholders.

“The public trust will be eroded in the independence and impartiality of the court if it appears or is seen to encourage undemocratic norms and values” he wrote.

“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” Justice Athar Minallah wrote in the verdict.

“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” he wrote.

“The conduct of the stakeholders does not entitle them to invoke the jurisdiction of this court under Article 184(3) of the constitution lest it is seen or appears to facilitate or promote undemocratic values and strategies,” Justice Minillah stated.

“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 stressed.

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, seventy-five years after the creation of Pakistan, the institutions remain weak” Justice Minallah wrote.

“The country is on the brink of a political and constitutional crisis and it is high time that all those responsible take a step back and resort to some introspection. All the institutions, including this court, need to set aside their egos and strive towards fulfilling their constitutional obligations” he wrote.

“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.”

Justice Minallah said that the political crisis “escalated when, after losing the vote of confidence, 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 stated.

Commenting on 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 lamented that the apex court “exercised jurisdiction under Article 184 (3) to legitimise the removal of elected prime ministers and endorse military takeovers”.

“The framers had inserted Article 184(3) intending that the jurisdiction shall be exercised to ensure that the fundamental rights of the weak, vulnerable and marginalised classes are protected,” he regretted.

“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 time frame committed to it.

“The deposed prime minister 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,” he said.

“The Chief Justice enjoys the status of the Master of the Roster by virtue of the powers conferred under the Rules of 1980. The jurisdiction under Article 184(3) exclusively vests in the “Supreme Court”, which collectively means the Chief Justice and the Judges of the Court. The Chief Justice is first among equals. The Rules of 1980 have been made by the Supreme Court i.e., the Chief Justice and the Judges for administrative convenience. The power under Article 184(3) is inherent and exclusively vests in the Supreme Court. The Chief Justice exercises the powers conferred under the Rules of 1980 as a delegatee, trustee or an agent. The Master of the Roster, therefore, owes a fiduciary duty of care towards the Supreme Court. As a fiduciary it is the duty of the Master of the Roster to preserve good faith and exercise the discretion with utmost care and in the best interest of the Supreme Court. The discretion under the Rules of 1980 is not unfettered nor can it be exercised arbitrarily. It is settled law and consistently affirmed by this Court that powers conferring discretion, no matter how widely worded, must always be exercised reasonably and subject to the existence of the essential conditions required for the exercise of such powers within the scope of the law. The discretion ought to be structured by organising it and producing order in it. The seven instruments of structuring of discretionary power – open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedures – are by now embedded in our jurisprudence. These principles are binding in discharging the functions and exercising jurisdiction under the Rules of 1980. The discretionary powers of the Master of the Roster are, therefore, not unfettered nor can be exercised arbitrarily or capriciously. As a corollary, it is the duty of the Master of the Roster to exercise discretion in a manner that preserves and promotes public trust and confidence. It is also an onerous duty of the Chief Justice to act in the best interest of the Supreme Court. Moreover, the Chief Justice and Judges are jointly and severally responsible to ensure that the jurisdiction under Article 184(3) is exercised to promote and preserve public trust. In case of breach of this duty the responsibility would rest with the Chief Justice and all the Judges, because they collectively constitute the Supreme Court. The Court is accountable to the Constitution, the law and the people of this country, who are our sole stakeholders. No one is above the law and every public office holder is accountable for the authority exercised under the Constitution and the law. The ‘imbalance’ referred to in the aforementioned judgment requires review of the Rules of 1980 in order to protect judicial integrity and impartiality in relation to constitution of the benches and allocation of cases. The Basic Law, the constitution of the Federal Republic of Germany, recognises the right to a ‘lawful judge’. The right prevents ad hoc and personam allocation of cases. The selection of judges and allocation of cases is made on the basis of objective criteria. If public trust is to be restored, the Court has to assume that each litigant has a right to a lawful judge” Justice Athar Minallah wrote. 

“In a nutshell, the invocation of jurisdiction under Article 184(3) and the exercise of discretion relating to the constitution of benches and fixation of cases are crucial in the context of preserving public trust and confidence. The process of constitution of benches and allocation of cases must be transparent, fair and impartial. The Court must always show extreme restraint in matters which involve the political stakeholders, having regard to the past practice and precedents as discussed above. The Court must not allow any stakeholder to use its forum for advancing its political strategy or gaining advantage over other competitors. It is the duty of the Court to ensure that political stakeholders are not encouraged to bring their disputes to the courts for judicial settlement by bypassing the institutions and forums created under the Constitution. It weakens the Majlise-Shoora (Parliament) and the forums meant for political dialogue and, simultaneously, harms the judicial branch of the State by prejudicing public trust in its independence and impartiality. It also encourages the political stakeholders to shun the democratic values of tolerance, dialogue and settlement through political means. This Court owes a duty to more than fifty thousand litigants whose cases on our docket are awaiting to be heard and decided. They ought to be given priority over the political stakeholders who are under an obligation to resolve their disputes in the political forums through democratic means. This Court has a duty to preserve public trust and confidence and not to appear politically partisan. This is what the Constitution contemplates. Conclusion.

19. It is not disputed that the Lahore High Court has already allowed the petitions and rendered an authoritative judgment and its competence to have it implemented cannot be doubted. The Peshawar High Court is also seized of the matter. In the light of the binding ‘salutary principles’ discussed above, the petitions and the suo motu jurisdiction must not be entertained lest it may interfere with the implementation of the judgment of the Lahore High Court and the proceedings pending before the Peshawar High Court. The premature and pre-emptive proceedings before this Court at this stage is likely to delay the enforcement of the judgment of the Lahore High Court, leading to infringement of the Constitution by exceeding the time frame prescribed ibid. This is also obvious from the opinions of my learned brothers Syed Mansoor Ali Shah, Yahya Afridi and Jamal

Khan Mandokhel, JJs who have also dismissed the petitions and on this ground, i.e., pendency of the same matter before two competent High Courts. Moreover, any person who would be aggrieved from the judgments of the High Courts will have the option to exercise the right to invoke this Court’s jurisdiction under Article 185 of the Constitution. In the facts and circumstances of the case in hand, it is not a ‘genuinely exceptional’ case to deviate from the binding salutary principles. By entertaining the petitions and suo motu jurisdiction, the Court would be unjustifiably undermining the independence of two provincial High Courts. The indulgence at this stage would be premature and it would unnecessarily prejudice public trust in the independence and impartiality of this Court. This Court has no reason to apprehend that the High Courts are less competent to defend, protect and preserve the Constitution” Justice Athar Minallah wrote.

“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. 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 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. The legitimacy of the judgment rendered in the

Pakistan Peoples Party Parliamentarians case was solely based on the invocation of the suo motu jurisdiction on the recommendation of twelve Judges of this Court. Every Judge has sworn an oath to defend, protect and preserve the Constitution. The constitution of a Full Court, as was suggested in my note dated 23.02.2023, was imperative to preserve public trust in this Court. There is another crucial aspect which cannot be ignored; the conduct of the political stakeholders. The political climate in the country is so toxic that it is inconceivable that political parties will even agree to having a dialogue, let alone arriving at a consensus. 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. 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? This Court cannot and must not appear or be seen as advancing the political strategies of political stakeholders. The public trust will be eroded in the independence and impartiality of the Court if it appears or is 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. 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 conduct of the stakeholders does not entitle them to invoke the jurisdiction of this Court underArticle 184(3) of the Constitution lest it is seen or appears to facilitate or promote undemocratic values and strategies” ” Justice Athar Minallah wrote.

“Before parting with the above reasoning in support of my orders dated 23.02.2023 and 24.02.2023, I feel it necessary to record my observations regarding the hearings. 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. It is also alarming that the conduct of the political stakeholders and their political strategies would create unprecedented political turmoil and instability in the country. Political stability is a precondition for economic progress and prosperity of the people. The power struggle between the political stakeholders is undermining the welfare and economic conditions of the people of this country. The people of Pakistan have been made to suffer for a long time by depriving them of their fundamental rights. 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 roots. Even today, seventy-five years after the creation of Pakistan, the institutions remain weak. The country is on the brink of a political and Constitutional crisis and it is high time that all those responsible take a step back and resort to some introspection. All the institutions, including this Court, need 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” Justice Athar Minallah concluded.