Election delay controversy: SC had dismissed suo motu, pleas with 4-3 majority: claims Minallah

ISLAMABAD: Justice Athar Minallah said the Supreme Court had dismissed the suo motu and the petitions on the delay in the general elections in the Punjab and Khyber-Pakhtunkhwa (KP) with the majority of 4-3.

Chief Justice of Pakistan Umar Ata Bandial on February 22 took suo motu on delay of the polls in the Punjab and the KP and also constituted a nine-member bench — comprising him, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, and Justice Minallah.

Two judges, Ijaz and Justice Mazahar recused, while Justice Yahya and Justice Minallah had dismissed the suo motu and the petition on February 27. The chief justice; therefore, constituted a five-judge bench, which on March 1, in a 3-2 verdict, directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP.

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Justice Minallah, the apex court judge on Friday released his detailed order on the suo motu and the petitions.

In his 25-page order, Justice Minallah mentioned the various case proceedings that took place on the matter since the assemblies were dissolved in January this year.

He has also mentioned the Lahore High Court (LHC)‘s February 10 verdict that ordered the ECP to immediately announce the date for elections in Punjab. He maintained that the petitions were filed seeking contempt of court proceedings to reinforce the LHC’s order but that the Supreme Court had “no reason to doubt the ability and competence” of the former.

He said that the written order of the hearing held on February 23 included a separate note from Justice Yahya Afridi, who had dismissed the petitions on the ground of maintainability. “The reasoning recorded in the short order was persuasive and I had no hesitation in concurring with the decision regarding the dismissal of the petitions. I had reiterated my decision by recording my note in the order dated 24.02.2023.”

Justice Minallah wrote; “This court cannot and must not appear or be seen as advancing the political strategies of political stakeholders. The public trust will be eroded in the independence and impartiality of the court if it appears or is seen to encourage undemocratic norms and values.”

He further said that the conduct of the stakeholders has created unprecedented political instability by resorting to conduct “that is devoid of the democratic values of tolerance, dialogue and debate”. “The conduct of the stakeholders does not entitle them to invoke the jurisdiction of this court under Article 184(3) of the Constitution lest it is seen or appears to facilitate or promote undemocratic values and strategies.” 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 created for this very purpose under the Constitution.

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

“The power struggle between the political stakeholders is undermining the welfare and economic conditions of the people of this country. The people of Pakistan have been made to suffer for a long time by depriving them of their fundamental rights. The long spells of undemocratic regimes validated by this court have caused irretrievable loss to the country and its people.

“The institutions which represent the will of the people were not allowed to take root. Even today, 75 years after the creation of Pakistan, the institutions remain weak. The country is on the brink of a political and Constitutional crisis, and it is high time that those entire responsible take a step back and resort to some introspection. All the institutions, including this court, need to set aside their egos and strive towards fulfilling their Constitutional obligations,” Justice Minallah wrote.

Regarding the judiciary, he said it was obvious that “we may not have learnt any lessons from our bleak history”. “We cannot erase the judgments from the law reports but at least endeavour to restore public trust and confidence so that the past is forgotten to some extent.

When politicians do not approach the appropriate forums and bring their disputes to the courts, the former may win or lose the case, but inevitably the court is the loser,“ he said. “I have had the privilege of reading the detailed reasoning recorded by my learned brothers – Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail 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. It is noted that I had not recused nor had any reason to dissociate myself,” he said.

Regarding Article 184(3) of the Constitution (matters of public importance), the judge said that invocation of jurisdiction under the article and the exercise of discretion relating to the constitution of benches and fixation of cases were crucial in the context of preserving public trust and confidence.

“The process of constitution of benches and allocation of cases must be transparent, fair and impartial. The court must always show extreme restraint in matters which involve the political stakeholders (…). The court must not allow any stakeholder to use this forum for advancing its political strategy or gaining advantage over other competitors. It is the duty of the court to ensure that political stakeholders are not encouraged to bring their disputes to the courts for judicial settlement by bypassing the institutions and forums created under the Constitution,” he said.

Copyright Business Recorder, 2023