ISLAMABAD: In a detailed judicial note in the Punjab and Khyber Pakhtunkhwa elections case, Supreme Court Justice Athar Minallah on Friday called for exercising “extreme restraint” in entertaining political questions, since public trust is eroded when the court is perceived as politically partisan and its judges are seen as “politicians in robes”.

In his “judicial order”, Justice Minallah also added a word of caution, saying the country was on the brink of a political and constitutional crisis and it is high time that all those responsible took a step back and resorted to some introspection.

Justice Minallah was among the four judges who had earlier rejected the suo motu case along with Justice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Jamal Khan Mandokhel.

“All the institutions, including the Supreme Court, need to set aside their egos and strive towards fulfilling their constitutional obligations,” he wrote.

Agrees with three other judges’ decision to reject suo motu action; explains he didn’t recuse from nine-judge bench

He said erosion of public trust in the independence and impartiality of the apex court could have been avoided if a “full court” was constituted, adding that a full court was also suggested in his earlier Feb 23 note.

It would have ensured the legitimacy of the proceedings, Justice Minallah emphasised while concurring with the opinion of Justice Yahya Afridi, who had dismissed the petition on the grounds of maintainability.

He also agreed with the joint note of Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel, who held that the March 1 judgement had been dismissed by a majority of four to three and therefore the same should be considered as the “Order of the Court,” adding this was also the understanding at the meeting held in the anteroom on Feb 27.

Referring to the Feb 23-24 Supreme Court orders in which the nine-judge bench was re-constituted into a five-judge bench to assume suo motu jurisdiction on the provincial assemblies’ election, Justice Minallah in his 25-page “verdict” explained that he did not recuse from the nine-judge bench nor had any reason to dissociate himself from the larger bench.

Justice Minallah regretted that the current political climate in the country was so toxic that it was inconceivable that political parties would agree to having even a dialogue, let alone arriving at a consensus.

‘Political disputes’

In a document punctuated with sub-headings, Justice Minallah emphasised that extreme restraint should be exercised while assuming jurisdiction under Article 184(3), adding it was the duty of the court to ensure that political stakeholders were not encouraged to bring their disputes to courts for settlement by bypassing the institutions created under the Constitution.

He questioned the way resignations were tendered from the National Assembly en masse and two provincial legislatures were dissolved “as a political strategy”, rather noting that courts were first approached to compel the speaker to accept the resignations, and when accepted, the courts were again approached to have the decision reversed.

Role of court

In his judgement, Justice Minallah said this court cannot and must not appear or be seen as advancing political strategies of political stakeholders, adding that public trust would be eroded in the independence and impartiality of the court if it appears to encourage undemocratic norms and values. The court would be unwittingly weakening the parliament by encouraging political stakeholders to add their disputes to its dockets.

Justice Minallah said political stakeholders must establish their bona fides before their petitions could be entertained. The conduct of stakeholders has created an unprecedented political instability by resorting to conduct devoid of democratic values of tolerance, dialogue and debate.

Thus the conduct of the stakeholders does not entitle them to invoke the jurisdiction of the Supreme Court under Article 184(3) lest it is seen or appears to facilitate or promote undemocratic values and strategies, said Justice Minallah.

It is also alarming that the conduct of political stakeholders and their political strategies would create unprecedented political turmoil and instability in the country when political stability was a precondition for economic progress and prosperity. .

But the power struggle between the political stakeholders is undermining the welfare and economic conditions of the people of this country who have been made to suffer for a long time by depriving them of their fundamental rights, Justice Minallah regretted.

CJP’s powers ‘not unfettered’

He explained that it was not disputed that the Lahore High Court (LHC) had already allowed the petitions and rendered an authoritative judgement and its competence to have it implemented cannot be doubted.

Likewise, he noted that the Peshawar High Court (PHC) was also seized with the matter. In the light of the binding ‘salutary principles’ the petitions and suo motu jurisdiction must not be entertained lest it may interfere with the implementation of the judgement of the LHC and the proceedings pending before the PHC.

Referring to the power of the chief justice of Pakistan (CJP), Justice Minallah explained that discretionary powers of the Master of the Roster were not unfettered nor arbitrarily or capriciously — discretion exercised in a manner that preserves and promotes public trust and confidence. It is also an onerous duty of CJP to act in the best interest of the Supreme Court.

Moreover, the CJP and judges are jointly responsible to ensure that Article 184(3) jurisdiction was exercised to promote and preserve public trust. In case of breach of this duty the responsibility would rest with CJP and all judges, because they collectively constitute the Supreme Court, Justice Minallah said.

Published in Dawn, April 8th, 2023