Judge Minallah questions dissolution of PA, upholds suo motu rejected 4-3
In a statement using harsh wording, a Supreme Court justice expresses remorse for the behavior of the supreme court and compares it to “advancing political schemes.”

ISLAMABAD: Judge Athar Minallah insisted on Friday that a majority 4-3 decision dismissed the Supreme Court’s (SC) suo motu complaint about the delay in the announcement of provincial assembly elections.
President Arif Alvi was given permission to declare the date of the Punjab Assembly elections by the Supreme Court, which also instructed the Khyber-Pakhtunkhwa (K-P) governor to determine the provincial assembly election date after consulting with Pakistan’s Election Commission (ECP).
The latter interpretation states that while Justices Jamal Khan Mandokhail and Syed Mansoor Ali Shah disagreed with the result and opposed the admission of the suo moto case, Chief Justice Umar Ata Bandial, Justice Munib Akhtar, and Judge Muhammad Ali Mazhar backed the decision.
Conflicting interpretations of the judgement have subsequently damaged it, with CJ Bandial supporting the directives and the government calling it a “minority ruing.”
The top court justices themselves, through their order, did not introduce this uncertainty; neither did the government or any other party engaged in the case. The suo motu procedures in the case, as was observed, revealed a serious divide among the SC judges.
Justices Ijazul Ahsan and Sayyed Mazahar Ali Akbar Naqvi withdrew from the case before the hearing in February because there were concerns about their eligibility to be on the court.
In the meanwhile, it was reported that Justices Afridi and Minallah, two more judges, had withdrawn from the proceedings after expressing their views on the petitions’ viability.
Justice Minallah said today (Friday) that he had read the Justice Shah and Justice Mandokhail’s detailed reasoning and that he “agrees with their opinion, particularly regarding the final result 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.”
He dismissed a suo motu complaint over the disclosure of the Punjab Assembly election date in a 23-page note, saying, “It is noticed that I had not recused nor had any reason to separate myself.”
Questionable behavior
“The method and style in which these proceedings were commenced have unduly exposed the court to political controversy,” the senior judge underlined.
“In a polarized political atmosphere, it has drawn criticism from political stakeholders. In writing, the complaints have also been made. This definitely has an impact on the confidence that the public should have in the impartiality of the court.
“By moving too quickly, the court will enter the politically charged waters, which are already muddy. Public trust will undoubtedly be reduced as a result.
An knowledgeable outside observer may have doubts about the assumption of suo motu jurisdiction alone. In these circumstances, not only would public confidence in the court’s independence and impartiality decline, but the rights of litigants with matters before us would be affected. If the cases had been heard by the entire court, this may have been prevented.
Judge Minallah noted, “That would have ensured the validity of the proceedings.”
Advancement of political strategies in SC
The Pakistan Tehreek-e-(PTI) Insaf’s decision to dissolve the Punjab Assembly has also drawn strong criticism from the SC justice, who stated that the court “cannot and must not look or be perceived as promoting the political strategies of political parties.”
“Questions are raised by the dissolution of the provincial legislature as part of the stakeholders’ political strategy. Is this behavior in line with the goals of constitutional democracy? Is this not a constitutional infringement in and of itself? Should this court permit the use of its platform to further political agendas or appear to be supporting undemocratic behavior? Should this court ignore the simultaneous use of the high courts’ and its own jurisdictions by political actors who are forum-shopping? This court cannot and must not be perceived as supporting the political agendas of interested parties.
“If the court looks to or is perceived to be encouraging undemocratic norms and ideals, the public will lose faith in the court’s independence and impartiality.
“By encouraging political actors to bring their conflicts to our dockets, the court would unintentionally damage the Majlis-e-Shoora (parliament) and the forums established under the constitution.
Before their petitions could be taken into consideration, the political stakeholders had to prove their legitimacy. By engaging in behavior that is devoid of the democratic norms of tolerance, discourse, and debate, the stakeholders have contributed to an unparalleled level of political instability.
According to Judge Minillah, “the stakeholders’ conduct does not permit them to use the jurisdiction of this court under Article 184(3) of the constitution lest it be perceived or appear to encourage or promote undemocratic principles and methods.”
He emphasized that “it is ironic and unthinkable for the political players to involve the court in addressing political conflicts that ought to have been resolved in the institutions designed for this purpose under the constitution.”
An evil past
Judge Minallah brought up the uncomfortable reality that the SC had once participated in behavior unworthy of an institution of its standing when reflecting on the history of the supreme court.
“The extended periods of undemocratic regimes that this court has endorsed have resulted in irreparable harm to the nation and its citizens. The establishment of the institutions that stand for the will of the people was prohibited. Even now, 75 years after Pakistan’s founding, the institutions are still insufficient.
“The nation is on the verge of a political and constitutional catastrophe, and it is past time that everyone accountable took a step back and engaged in some reflection. All institutions, including this court, must put their egos aside and work to uphold their constitutional duties.
“Speaking on behalf of my institution, it is clear that we might not have taken any lessons from our tragic past. Although we cannot remove the decisions from the court records, we can at least work to regain the public’s faith and trust so that the past may be somewhat forgotten. Politicians may win or lose cases when they don’t go to the proper channels and take their issues to court, but the court always loses when this happens.
The political situation, according to Judge Minallah, “escalated when, after losing the vote of confidence, Mr. Imran Khan opted not to accept the elevated seat of leader of the opposition and decided to resign from the membership of the National Assembly together with other PTI members,” he stated.
“The resignations were submitted, but the speaker took a while to accept them. The tactic has significant ramifications for Pakistan’s political system and constitutional democracy, he continued.
“Instead of fulfilling their constitutional duties as members of the opposition, en masse resignations from the National Assembly were submitted as a political ploy. When the resignations were accepted, the constitutional courts were first contacted to force the speaker to accept them, then afterward, they were contacted once again to have the decision overturned, according to Judge Minallah.
Read “Legally Correct: Lawyers Comment on SC Punjab Elections” as well.
The judge stated that “the political repercussions of this proclamation were deep in a highly inflamed and polarized political context” in his commentary on the SC majority ruling on the interpretation of Article 63 A of the constitution. The petitions before this court are still pending, and a review of the verdict was requested.
The Supreme Court, according to Justice Minallah, “exercised power under Article 184 (3) to legitimize the removal of elected prime ministers and sanction military takeovers.”
He lamented that the founders had added Article 184(3) with the intention that the jurisdiction be used to ensure that the basic rights of the poor, vulnerable, and marginalized classes are preserved.
“While exercising its original jurisdiction, this court handed down the decision in Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657) to approve the declaration of martial law, which was justified by the necessity doctrine and continued for a decade despite the time commitment.
The court rejected the ousted prime minister’s appeal by a vote of 4 to 3 and sentenced him to death after being found guilty. The appellant had submitted an application during the trial because he had concerns about the makeup of the Bench, the judge stated.