• Justice Minallah recalls decision on then-Justice Isa’s request to live-stream hearing of his plea against presidential reference
• Recounts treatment meted out to other ex-PMs, says court must guard against perception that it is complicit in ‘persecution’

ISLAMABAD: Justice Athar Minallah — the sole dissenting voice on a five-member bench that had declined a request to live-stream proceedings in the NAB amendments case — observed on Wednesday that the decision amounted to a violation of principles laid down in a case that was brought before it by the incumbent chief justice himself.

“There is no substantive reason, nor [do] exceptional circumstances exist for denying the public their right to have access to the court proceedings through livestreaming,” Justice Minallah observed in a 13-page note, issued on Wednesday.

Wednesday’s note came in response to a May 30 Supreme Court order where four out of five judges ruled that live broadcast or livestreaming was the court’s exclusive domain, but exercised with caution to avoid apprehension of exploitation and misuse of facility for ulterior or personal purposes.

On May 16, a hearing of the NAB amendments case, which was also attended by incarcerated former PM Imran Khan via video link, was not live-streamed.

The Khyber Pakhtunkhwa advocate general sought livestreaming of further proceedings, but the request was turned down.

The Supreme Court is now expected to resume hearing the case today (Thursday).

In his note, the SC judge observed that the exercise of discretion not to order livestreaming of court proceedings by a bench, to which the facility is available, will be lawful and justified only in exceptional circumstances and for compelling reasons.

Moreover, once proceedings in a particular case have been livestreamed, they cannot be ordered to be discontinued unless the court is satisfied that it is necessary to do so in the public interest, for a demonstrably substantial reason, he wrote.

The denial of access will unjustifiably give rise to suspicions and erode the confidence of the people in the apex court, he said, noting that it was inevitable that the Supreme Court should have to “walk the extra mile to ensure transparency” and “be seen as impartial and to dispel any perception to the contrary”.

Justice Isa’s case

On April 13, 2021, the Supreme Court — by a majority of six to four — had dismissed then-Justice Qazi Faez Isa’s application, seeking permission for livestreaming the hearing of his review petition on the presidential reference against him.

In the reference, which was eventually thrown out by the apex court, the PTI government had accused then-Justice Isa of acquiring three properties in London and not disclosing them in his wealth returns.

The note explained that in that case, the Supreme Court had declared access of the public to court proceedings in all matters of public importance “a recognised fundamental right”, guaranteed under Article 19-A of the Constitution.

Then-Justice Isa’s application was dismissed on a technicality: the majority was of the view that the modalities and details should be decided by a full court, while the minority had okayed livestreaming in principle.

Lessons from history

The note recalled that when former prime minister Zulfikar Ali Bhutto was arrested and sent to the gallows by the Supreme Court, he was no ordinary prisoner or convict, rather the “victim of the coercive apparatus of the state imposed by a uniformed usurper, who was purportedly given legitimacy by the Supreme Court”.

“Likewise, Benazir Bhutto and Nawaz Sharif were made to profoundly suffer on account of the grave abuse of the powers vested in NAB,” the note said, noting that they were not ordinary prisoners because their persecutions were perceived to be politically motivated.

“They had millions of followers and the perception that, as representatives of the people, they were being humiliated and harassed for other than bona fide reasons on the basis of alleged corruption and corrupt practices at the behest of unelected officeholders was not without substance.”

“It is ironic that yet another elected former PM [Imran Khan]… is incarcerated today and facing multiple trials, some having ended in convictions and also set aside by appellate forums,” Justice Minallah said.

He, like other former elected PMs, has millions of followers across the country … [and] is definitely not an ordinary prisoner or convict.

The note assailed what it called a “perception of the complicity of the Supreme Court” in such a persecution of elected representatives, adding that the court should “err in favour of the millions of followers and their representatives now, lest attempts be made after decades to remove an irretrievable blemish”.

“The courts and the judges cannot bury their heads in the sand by ignoring the obvious realities. The reported restrictions on freedom of expression are manifest from the fact that censorship has been imposed on court reporting as well,” the note said.

Published in Dawn, June 6th, 2024