Suo motu was dismissed by 4-3: Justice Minallah

ISLAMABAD: Supreme Court Judge Athar Minallah Friday emphasised that all the state institutions — including the apex court — need to set aside their egos and strive to fulfill their constitutional obligations.

“When politicians do not approach appropriate forums and bring their disputes to the courts, the former may win or lose the case, but inevitably the court is the loser,” said the judge in his detailed note in the suo motu case concerning the delay in the Punjab and Khyber Pakhtunkhwa elections. The judge agreed with the opinions of Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel dismissing the matter by a 4-3 ruling.

The judge noted that the written order related to the hearing held on 23.02.2023 included a separate note from Yahya Afridi, J, who had dismissed the petitions on the ground of maintainability. The judge maintained that the reasoning recorded in the short order was persuasive and he 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,” the judge added. “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 4-3 because this was the understanding in the meeting held in the anteroom on 27.02.2023,” Justice Minallah said, adding that it noted that he had not recused nor had he any reason to dissociate himself.

Justice Minallah said long spells of undemocratic regimes validated by the apex court had caused irretrievable loss to the country and its people adding that the institutions, which represented the will of the people, were not allowed to take root. He said the country was on the brink of a political and constitutional crisis and it was high time that all those responsible took a step back and did some introspection. “All the institutions, including this court, need to set aside their egos and strive towards fulfilling their constitutional obligation,” the judge held.

The judge further noted that the court must not allow any stakeholder to use its forum for advancing its political strategy or gaining an advantage over other competitors adding that it was the duty of the courts to ensure that political stakeholders were not encouraged to bring their disputes to them for judicial settlement by bypassing the institutions and forums created under the Constitution. “It weakens the Majlise-Shoora (Parliament) and the forums meant for political dialogue and, simultaneously, harms the judicial branch of the state by prejudicing public trust in its independence and impartiality,” said Justice Minallah adding that it also encouraged the political stakeholders to shun democratic values of tolerance, dialogue and settlement through political means.

The judge maintained that the apex court had been dragged into controversies of a political nature for a third time in quick succession adding that the petitions and assumption of suo motu jurisdiction under Article 184(3) of the Constitution stem from an unceasing political turmoil. The judge further noted that the apex court remained at the centre stage of an unprecedentedly charged and polarised political milieu adding that the first indulgence of this court was when the voting on the resolution of the no-confidence motion was stalled by the deputy speaker followed by dismissal of the National Assembly by the president.

The judge maintained that the unanimous verdict handed down by a five-member bench had set aside the act of the deputy speaker and declared the dissolution of the National Assembly as ‘extra-constitutional’. The resolution of no-confidence was revived and consequently, the National Assembly was restored. Justice Minallah said the request of the attorney general to continue with the process of elections was turned down and the action of the deputy speaker was declared as biased.

Subsequently, the resolution was carried by a majority and resultantly Prime Minister Imran Khan ceased to hold office under Article 395(4) of the Constitution, the judge noted.

Justice Minallah said the political crisis escalated when, after losing the vote of confidence, Imran Khan chose not to take the exalted seat of the leader of the opposition and decided to resign from the membership of the National Assembly along with other members belonging to the PTI.

Justice Minallah noted that the resignations were tendered but their acceptance by the speaker was delayed adding that the strategy had profound consequences for the political process and constitutional democracy of Pakistan.

Justice Minallah held that the chief justice enjoyed the status of Master of the Roster by virtue of the powers conferred under the Rules of 1980 adding that the jurisdiction under Article 184(3) exclusively vested in the “Supreme Court”, which collectively meant the chief justice and the judges of the court. The judge noted that the power under Article 184(3) was inherent and exclusively vested in the Supreme Court. “The chief justice exercises the powers conferred under the Rules of 1980 as a delegatee, trustee or an agent. The Master of the Roster, therefore, owes a fiduciary duty of care towards the Supreme Court,” Justice Minanllah noted adding that as a fiduciary, it was the duty of the Master of the Roster to preserve good faith and exercise discretion with utmost care and in the best interest of the Supreme Court.

The judge further noted that the chief justice and judges were jointly and severally responsible to ensure that the jurisdiction under Article 184(3) was exercised to promote and preserve public trust. “In case of breach of this duty, the responsibility would rest with the chief justice and all the judges because they collectively constitute the Supreme Court,” the judge held. “In a nutshell, the invocation of jurisdiction under Article 184(3) and the exercise of discretion relating to the constitution of benches and fixation of cases are crucial in the context of preserving public trust and confidence,” the judge noted.

The judge maintained that the process for the constitution of benches and allocation of cases must be transparent, fair and impartial adding that the court must always show extreme restraint in matters which involve the political stakeholders, having regard to the past practice and precedents.

He maintained that the apex court has no reason to apprehend that the high courts are less competent to defend, protect and preserve the Constitution adding that the manner and mode in which these proceedings were initiated had unnecessarily exposed the court to political controversies. The judge noted that the constitution of a full court, as was suggested in his note dated 23.02.2023, was imperative to preserve public trust in this court adding that there was another crucial aspect which could not be ignored — the conduct of the political stakeholders.

The judge noted that the political climate in the country was so toxic that it was inconceivable that political parties will even agree to have a dialogue, let alone arrive at a consensus. “Before parting with the above reasoning in support of my orders dated 23.02.2023 and 24.02.2023, I feel it necessary to record my observations regarding the hearings,” Justice Minallah said, adding that it was ironic and unimaginable for the political stakeholders to involve the court in resolving political disputes which ought to have been settled in the forums created for this purpose under the Constitution.