In yet another twist to holding provincial elections in the country, Justice Athar Minallah of the Supreme Court (SC) on Friday released his detailed note on the suo motu notice proceedings on the delay in holding polls in Khyber Pakhtunkhwa and Punjab, saying that the case was dismissed 4-3.

Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on February 22 took suo motu notice of the polls in Punjab and Khyber Pakhtunkhwa, saying that there appeared to be a “lack of clarity” on the matter.

Key points:

• Justice Minallah says he agrees with Justices Syed Mansoor Ali Shah and Jamal Khan Mandokhail, who penned the dissenting note in the suo motu case
• Justice Minallah says court must always “show extreme restraint in matters which involve political stakeholders”
• Justice Minallah also questions move to dissolve provincial assemblies, asks if such conduct is in “consonance with the scheme of constitutional democracy”
• Govt says CJP has become “controversial”, calls on him to resign

Justice Bandial also 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 — to hear the case.

The CJP on February 27, however, split the larger bench into a five-member bench. The SC also issued a written order, which was dictated in the open court on Feb 23 when Justice Jamal Mandokhail had objected to the initiation of the proceedings under Article 184(3).

Signed by nine judges, the Feb 27 order of the bench stated that keeping in view the Feb 23 order, the additio­nal notes attached by four jud­ges, the CJP’s direction to add questions raised by Jus­tice Shah, Justice Afridi, Justice Mando­khail and Justice Minallah, as well as discussions/deliberations made in the anteroom of the apex court, the matter was referred back to the top judge.

In response, the CJP recon­s­ti­tuted the bench comprising himself, Justice Shah, Justice Akhtar, Justice Mandokhail, and Justice Mazhar.

On March 1, the SC, in a 3-2 verdict, 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 judgement, given by CJP Bandial, Justice Akhtar, and Justice Mazhar, however, 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.

Justice Mandokhail and Justice Shah — who were among the four judges who had written additional notes in the Feb 23 order — 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 “wholly unjustified”, besides being initiated with “undue haste”.

They also noted that the reconstitution of the bench was “simply 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, which have to be counted when the matter is finally concluded.”

They argued that Justice Ahsan and Justice Naqvi had not been removed from the bench but had voluntarily recused themselves. “Thus, their short orders are very much part of the case, therefore, the administrative order of reconstitution of the bench by the Hon’ble Chief Justice cannot brush aside the judicial decisions of the two Hon’ble Judges who had decided the matter when the case was heard by a nine-member bench.”

They further said 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”.

“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.”

Justice Minallah’s detailed note

In his 25 page-long note, Justice Minallah mentioned the various case proceedings that took place on the matter since the assemblies were dissolved in January.

He has also mentioned the Lahore High Court’s Feb 10 verdict where it ordered the ECP to immediately announce the date for elections in Punjab.

Justice Minallah observed that petitions were filed seeking contempt of court proceedings to reinforce the LHC’s order but that the Supreme Court had “no reason to doubt the ability and competence” of the former.

He said that the written order of the hearing held on Feb 23 included a separate note from Justice Yahya Afridi, who had dismissed the petitions on the ground of maintainability.

“The reasoning recorded in the short order was persuasive and I had no hesitation in concurring with the decision regarding dismissal of the petitions. 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 jurisdiction 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,” he said.

Regarding Article 184(3) of the Constitution (matters of public importance), the judge said that invocation of jurisdiction under the article and the exercise of discretion relating to the constitution of benches and fixation of cases were 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 […] 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,” he said.

He further said that doing so weakens Parliament and the forums meant for political dialogue while also inflicting harm on 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,” he said.

Raising objection on the suo motu notice, the justice said that the “premature and pre-emptive proceedings before this court at this stage is likely to delay the enforcement” of the LHC judgement.

He mentioned the notes penned by three other Supreme Court justices who had also dismissed the petition on the grounds that the matter was pending before two high courts.

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 polarised political environment”.

“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.”

He further said that there was another crucial aspect that was being ignored: the conduct of 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,” he said.

He further said that the dissolution of the provincial assemblies, as part of a political strategy, raised 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 further said that the conduct of the stakeholders has created 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 under Article 184(3) of the Constitution lest it is seen or appears to facilitate or promote undemocratic values and strategies.”

He went on to say that it was “ironic and unimaginable for political stakeholders to involve the court in resolving political disputes” which should have been settled in forums created for this very 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, 75 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,” Justice Minallah wrote.

Regarding the judiciary, he said it was obvious that “we may not have learnt any lessons from our 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 said.

Justice Minallah’s note comes after the top court, while hearing a petition filed by the PTI, ruled that the election commission’s decision to postpone polls to the Punjab Assembly till Oct 8 was “unconstitutional” and fixed May 14 as the date for polls in the province.

The verdict — issued by a three-member bench headed by CJP Bandial — created an uproar in the country’s politico-judicial circles after the bench turned down the government’s request to form a full court on the matter. On Thursday, the National Assembly passed a resolution rejecting the verdict.

Moreover, questions have also been raised about the CJP’s suo motu powers over the last few weeks.

Last week, the Senate passed the Supreme Court (Practice and Procedure) Bill 2023, which aims to deprive the chief justice of powers to take suo motu notice in an individual capacity.

Govt calls on CJP to resign

Shortly after the verdict was issued, Information Minister Marriyum Aurangzeb held a press conference in Islamabad, terming Justice Minallah’s note to be a “major decision”.

“Athar Minallah’s decision not only raises a question on court proceedings but it also categorically states that he had not distanced, recused or disassociated himself from the bench.”

She further said that Justice Minallah had agreed with the verdict issued by his brother judges and declared the case to be inadmissible. She said that a verdict could not be issued on a matter that had been dismissed by a majority.

The information minister went on to say that the CJP had become “controversial” and should, therefore, resign.

Interior Minister Rana Sanaullah also echoed the call for the chief justice to resign while talking to Geo News.

PML-N Senior Vice President (SVP) Maryam Nawaz said that judges of “impeccable repute have raised serious questions on CJP’s conduct and bias” and also called on Justice Bandial to resign.

Meanwhile, PTI leader Fawad Chaudhry said Justice Minallah had accepted the principle of conducting elections within 90 days.

In a separate tweet, he termed Minallah’s ruling a “mediocre judgement by all standards”.

PTI’s Shireen Mazari opined that “sadly he (Justice Minallah) has written more of a political statement than a judicial note. Most unfortunate and disappointing too.”