Controversy over the Supreme Court’s verdict in a suo motu case on delayed elections in Punjab and Khyber-Pakhtunkhwa was fueled on Friday by Justice Athar Minallah issuing a detailed order maintaining that the case was dismissed by 4-3 and urging the apex court to avoid encouraging political stakeholders to bring their disputes before it.
Justice Minallah was among four judges—of a nine-member bench—who had earlier rejected the suo motu, stating that it was not maintainable. Apart from him, Justices Mansoor Ali Shah, Yahya Afridi and Jamal Khan Mandokhail had also rejected it. Of the remaining five judges, two—Justices Ijazul Ahsan and Mazahar Ali Akbar Naqvi—had recused themselves, leaving three judges—Chief Justice of Pakistan (CJP) Umar Ata Bandial and Justices Munib Akhtar and Muhammad Ali Mazhar—who had issued their ruling.
Since the ruling was issued—directing the Election Commission of Pakistan (ECP) to conduct polls in Punjab and Khyber-Pakhtunkhwa within 90 days of the dissolution of their assemblies “with the barest minimum deviation”—the government has repeatedly maintained that it is a “minority” judgement and requested the formation of a full court bench to resolve the matter. These requests have been repeatedly denied by the CJP, triggering an impasse between the judiciary and executive that is ongoing.
In his judicial order, Justice Minallah wrote that he agreed with Justice Afridi’s note to dismiss the petition, adding that he had no “hesitation in concurring” with it. “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,” he said, adding that he had not recused himself, nor had any reason to do so.
Noting that there were three fundamental reasons to dismiss the petition, he said the first was the “salutary principles” expounded by a full court on the jurisdiction under Article 184(3); the second was the “utmost caution” required in cases involving political parties so the impartiality of the court could not be questioned; and third was the conduct and bona fides of the political stakeholder who approached the court. “The legitimacy of the court’s verdict solely depends on the public’s belief that the Court is an independent, impartial, and apolitical arbiter of disputes between political stakeholders,” he said, stressing that preserving public trust and confidence in the court’s independence and impartiality was crucial. “This court has been dragged into controversies of a political nature for a third time in quick succession,” he added.
Summarizing the three cases, he said the first was the suo motu taken—on the recommendation of 12 judges—on then-Deputy Speaker Qasim Suri’s preventing voting on the no-confidence resolution; the second was the interpretation of Article 63A and the third was the elections delay case. Noting that the PTI’s actions since its ouster had “profound consequences for the political process and constitutional democracy,” he recalled that the party had first sought acceptance of its resignations and then approached the court again to have them rejected.
“The effects of the interpretation of Article 63A on the ensuing events were far-reaching for the polarized political stakeholders,” he said, noting that the PTI had decided to dissolve the Punjab and KP assemblies after forming the Punjab government. Before a date for polls was announced, he wrote, the PTI had approached the Lahore High Court and Peshawar High Court, with the former concluding proceedings and issuing a judgement on Feb. 10 directing the ECP to immediately announce a date for elections in Punjab. As the appeals against the ruling have yet to be taken up, he wrote, the judgment is still in force. “This court has no reason to doubt the ability and competence of the High Court to enforce its judgment because, by doing so, the competence and independence of a provincial constitutional court would be unjustifiably undermined,” he said, adding the PHC was also hearing its petitions.
“While the Lahore High Court had already rendered an authoritative judgment and it was in the process of being enforced, petitions were filed before this court urging assumption of jurisdiction under Article 184(3) of the Constitution regarding the same matter: holding of elections within the time prescribed under the Constitution,” he said, recalling that a two-member bench of the apex court had referred the matter to the CJP for suo motu while seized with a service matter relating to the transfer of a police officer. Noting the questions raised by the CJP in his suo motu had “in my opinion” already been adjudicated upon by the Lahore High Court, Justice Minallah said it was competent to enforce the writs granted by it.
Suo motu
Justice Minallah argued that while Article 184(3) had been inserted in the Constitution to “ensure that the fundamental rights of the weak, vulnerable and marginalized classes are protected,” it was actually “exercised to legitimize the removal of elected prime ministers and endorse military takeovers.” He recalled that the Begum Nusrat Bhutto vs. Chief of Army Staff and Federation of Pakistan and Zafar Ali Shah vs. General Pervez Musharraf were used to remove elected prime ministers, adding Yousaf Raza Gillani and Nawaz Sharif were also disqualified from office under Article 184(3).
Such moves in the realm of politics and unregulated invocation of suo motu jurisdiction, he said, had invited criticism on the “molded public perceptions which were indeed not favorable for public trust and confidence.” The jurisdiction under Article 184(3), he wrote, was vested in the “Supreme Court,” meaning the CJP and the judges of the court collectively. “The power under Article 184(3) is inherent and exclusively vests in the Supreme Court,” he said, adding it was the CJP’s duty to exercise the jurisdiction in the best interest of the Supreme Court. The CJP’s powers in this regard, he stressed, were not “unfettered.”
The judge maintained that the court “must not allow any stakeholder to use its forum for advancing its political strategy or gaining an advantage over other competitors.” This, he said, not only weakened Parliament, but also adversely impacted the public perception of the judiciary.
“All the institutions, including the Supreme Court, need to set aside their egos and strive towards fulfilling their constitutional obligations,” he wrote, adding the erosion of public trust in the independence and impartiality of the apex court could have been avoided if a “full court” was constituted.
Dismissing petition
Justice Minallah said the petitions and the suo motu jurisdiction “must not be entertained lest it may interfere with the implementation of the judgment of the Lahore High Court and the proceedings pending before the Peshawar High Court.” Any issue with those judgements, he said, could be taken up in appeals by the apex court. “Indulgence at this stage would be premature and it would unnecessarily prejudice public trust in the independence and impartiality of this Court,” he stressed.
Reiterating that the “manner and mode” in which these proceedings were initiated had “unnecessarily” exposed the court to political controversies, he said it might “raise concerns in the mind of an informed outside observer” and prejudice the rights of litigants whose cases are pending. The “conduct of the political stakeholders,” he stressed, had soured matters.
Describing the country’s political atmosphere as “toxic” since the dissolution of the assemblies earlier this year, he asked if the court should be seen as “advancing political strategies or appear to be encouraging undemocratic conduct.” He noted that while the court could not erase past judgments, it could “at least endeavor to restore public trust and confidence.” He also wrote that the court is “inevitably” the loser whenever it wades into political disputes.