Justice Athar Minallah of the Supreme Court (SC) released his detailed note on the suo motu notice proceedings on the delay in holding elections in Khyber Pakhtunkhwa and Punjab on Friday, stating that the case was dismissed 4-3, adding yet another twist to the country’s provincial elections.
On February 22, Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial said that the elections in Punjab and Khyber Pakhtunkhwa appeared to have a “lack of clarity.”
Key points:
Justice Minallah says he agrees with Justices Syed Mansoor Ali Shah and Jamal Khan Mandokhail, who wrote the dissenting opinion in the suo motu case. Justice Minallah also says the court must always “show extreme restraint in matters which involve political stakeholders.” Justice Minallah also questions the move to dissolve provincial assemblies and asks if this is in “consonance with the scheme of constitutional democracy.” The government says the CJP has become “controversial” and
However, on February 27, the CJP divided the larger bench into five members. When Justice Jamal Mandokhail had objected to the commencement of the proceedings in accordance with Article 184(3), the Supreme Court also issued a written order that was dictated in open court on February 23.
Endorsed by nine appointed authorities, the Feb 27 request for the seat expressed that keeping in view the Feb 23 request, the additional notes appended by four judges, the CJP’s heading to add questions raised by Justice Shah, Equity Afridi, Equity Mandokhail and Equity Minallah, as well as conversations/thoughts made in the antechamber of the pinnacle court, the matter was alluded back to the top adjudicator.
The CJP reconstituted the bench consisting of himself, Justices Shah, Akhtar, Mandokhail, and Mazhar in response.
In a 3-2 decision on March 1, the Supreme Court ordered the Election Commission of Pakistan (ECP) to consult with Governor Ghulam Ali and President Arif Alvi regarding the elections in Punjab and KP, respectively.
However, the majority decision, which was made 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 the event of a practical issue.
The ruling was rejected by Justices Mandokhail and Shah, two of the four judges who had included additional notes in the order from February 23. In a joint difference note, the two top court judges said that the suo motu procedures started by the CJP were “entirely outlandish”, other than being started with “unjustifiable scramble”.
Additionally, they remarked 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, which have to be counted when the matter is finally concluded.”
They argued that Justices Ahsan and Naqvi had voluntarily recused themselves, not been removed from the bench. The administrative order of reconstitution of the bench by the Hon’ble Chief Justice cannot overrule the judicial decisions of the two Hon’ble Judges who had decided the matter when the case was heard by a nine-member bench because their short orders are very much a part of the case.
They added that “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,” if the decisions of Justices Afridi and Minallah were not counted, “would amount to excluding them from the bench without their consent.”
“Consequently, we are of the assessment that the excusal of the present suo motu procedures and the associated constitution petitions is the request for the court by a greater part of 4 to 3 of the seven-part seat.”
The extensive note of Justice Minallah Justice Minallah wrote a 25-page note in which he described the various court proceedings that had taken place regarding the matter since the assemblies were dissolved in January.
He has also talked about the verdict that the Lahore High Court handed down on February 10 and told the ECP to immediately announce the date of the elections in Punjab.
Justice Minallah made the observation that petitions were submitted in support of the LHC’s order seeking contempt of court, but that the Supreme Court had “no reason to doubt the ability and competence” of the LHC.
He said that the composed request of the conference hung on Feb 23 incorporated a different note from Equity Yahya Afridi, who had excused the petitions on the ground of practicality.
“I had no hesitation in agreeing with the decision regarding the dismissal of the petitions. The reasoning that was recorded in the short time was persuasive.” In my note, which was recorded in the order dated February 24, 2023, I had reiterated my decision.
“I have had the privilege of reading the in-depth reasoning that my learned brothers, Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJs, have recorded, and I agree with their opinion, particularly with regard to 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, 2023. He stated, “It is noted that I had neither recused myself nor had any reason to dissociate myself.”
The judge stated that the exercise of discretion regarding the constitution of benches and the fixation of cases were crucial to the preservation of public trust and confidence in the context of Article 184(3) of the Constitution, which addresses matters of public importance.
The procedure for establishing benches and allocating cases must be open, equitable, and impartial. In matters involving political stakeholders, the court must always exercise extreme restraint. […] The court must not permit any stakeholder to use its forum to advance its political strategy or gain an advantage over other competitors. He stated, “It is the court’s responsibility to ensure that political stakeholders are not encouraged to bring their disputes to the courts for judicial settlement by avoiding the institutions and forums established under the Constitution.”
He further said that doing so debilitates Parliament and the discussions implied for political discourse while additionally causing hurt for the legal part of the state by “prejudicing public confidence in its freedom and unbiasedness”.
“It also encourages political stakeholders to disregard democratic values like tolerance, dialogue, and political settlement. Over fifty thousand litigants whose cases are on our docket and awaiting hearing and decision owe this court a duty.
They ought to be prioritized over political stakeholders, who are obligated to use democratic means to settle their disagreements in political forums. It is the responsibility of this court to maintain public confidence and avoid appearing politically partisan. He stated, “This is what the Constitution contemplates.”
The justice objected to the suo motu notice and stated that the LHC judgment’s “premature and pre-emptive proceedings before this court at this stage is likely to delay enforcement.”
He talked about the notes that three other justices on the Supreme Court had written, saying that they had also rejected the petition because the case was pending before two high courts.
He stated 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” were two of the factors that contributed to the conflict.
“By proceeding prematurely, the court will be entering political waters that are already murky. It is likely to undermine public trust. An informed outside observer might have concerns about the assumption of suo motu jurisdiction on its own.
In addition, he stated that another essential aspect was being overlooked: the actions of political players.
He stated, “It is inconceivable that political parties will even agree to having a dialogue, let alone reaching a consensus” due to the country’s toxic political climate.
He further said that the disintegration of the commonplace gatherings, as a component of a political methodology, brought up issues.
“Is this behavior compatible with the framework of constitutional democracy? Is it not a constitutional violation on its own? Should this court permit the use of its forum for the advancement of political strategies or the appearance of encouraging undemocratic behavior? By simultaneously referring to the jurisdictions of the high courts and this court, shouldn’t this court take into consideration forum shopping by political stakeholders?
This court cannot and must not appear to be advancing political stakeholder strategies. The public trust will be dissolved in the autonomy and fair-mindedness of the court assuming that it shows up or supposedly encourages undemocratic standards and values.”
In addition, he stated that the stakeholders’ behavior “that is devoid of the democratic values of tolerance, dialogue, and debate” has resulted in unprecedented political instability.
“The lead of the partners doesn’t qualifies them for summon the ward of this court under Article 184(3) of the Constitution in case it is seen or seems to work with or advance undemocratic qualities and methodologies.”
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 established specifically for this purpose under the Constitution. He concluded by saying that this was the case.
“It is likewise disturbing that the direct of the political partners and their political
“The fight for control between the political partners is sabotaging the government assistance and monetary states of individuals of this country. Depriving the Pakistani people of their fundamental rights has caused them to suffer for a long time. The country and its people have suffered irreparable harm as a result of the prolonged periods of undemocratic regimes recognized by this court.
“The institutions that represent the people’s will were prevented from taking root. Even now, 75 years after Pakistan was established, the institutions are still insufficient. The nation is on the verge of a political and constitutional crisis, and it is past due for those in charge to take a step back and reflect. Justice Minallah wrote, “All institutions, including this court, must put their egos aside and work toward fulfilling their constitutional responsibilities.”
He stated that it was evident that “we may not have learned any lessons from our bleak history” with regard to the judiciary.
“Although we are unable to completely remove the judgments from the law reports, we can at least make an effort to restore public trust and confidence so that the past is somewhat forgotten. He stated, “Politicians may win or lose the case when they do not approach the appropriate forums and bring their disputes to the courts, but the court is always the loser.”
Following the top court’s ruling that the election commission’s decision to postpone elections to the Punjab Assembly until October 8 was “unconstitutional” and set May 14 as the date for the province’s elections, Justice Minallah issued his note.
After rejecting the government’s request to form a full court on the matter, the verdict, which was issued by a three-member bench led by CJP Bandial, caused a stir in the country’s politico-judicial circles. The verdict was rejected by a resolution passed by the National Assembly on Thursday.
In addition, in recent weeks, concerns have been expressed regarding the CJP’s suo motu powers.
The Supreme Court (Practice and Procedure) Bill 2023, which the Senate approved last week, aims to deny the chief justice the authority to take suo motu notice on an individual basis.
Information Minister Marriyum Aurangzeb held a press conference in Islamabad shortly after the verdict was issued, describing Justice Minallah’s note as a “major decision.” Government calls for CJP to resign.
“Athar Minallah’s choice brings up an issue on court procedures as well as completely expresses that he had not separated, recused or disassociated himself from the seat.”
She added that Justice Minallah had ruled the case inadmissible and concurred with the verdict handed down by his brother judges. She stated that a matter that had been dismissed by a majority could not result in a verdict.
The information minister went on to say that the CJP should resign because it had become “controversial.”
Maryam Nawaz, the Senior Vice President (SVP) of the PML-N, demanded Justice Bandial’s resignation and stated that judges of “impeccable repute” had “raised serious questions on CJP’s conduct and bias.”
In the interim, PTI pioneer Fawad Chaudhry said Equity Minallah had acknowledged the standard of leading decisions in 90 days or less.