[News Analysis] SC judge says no public trust when judges seen as ‘politicians in robes’

KARACHI: In his note, Justice Minallah has said that “public trust is eroded when the court is perceived as politically partisan and the judges as ‘politicians in robes’”. Legal experts say that, while Justice Minallah’s note may not affect the outcome of the SC’s election verdict, it does point to the judicialization of politics -- and is a controversy that will not go away.

High court advocate and former faculty at LUMS Hassan Abdullah Niazi says that “Justice Minallah’s note brings to the forefront the pitfalls with the judicialization of politics; of believing a just process is not as important as results. These problems can no longer be ignored by the CJ if he wants public trust in the judiciary to survive.”

But Supreme Court Advocate Salman Raja reads Justice Minallah’s political note differently. He says that “half of Justice Minallah’s note correctly says that courts should not get involved in political questions. But then the issue is: what is a political question? Any decision that has political consequences is not a decision dealing with a political question. Justice Minallah observes himself that where there are legal and constitutional issues involved, the courts must decide the questions of law involved even if the matter has political content. If the government of the day says we are not going to hold an election as per the constitution then that is not a political question but a clear question about constitutional requirements and limits. Parliament is not a court. It decides according to the will of the political majority inside parliament. This majority cannot override the constitution...such matters have to come to court.”

Addressing the same question lawyer Salaar Khan says that, “while there are arguments to be made for examining the motivations behind a dissolution -- since that too relates to the people’s right to representation -- that seems to be a matter better left to legislative amendment, rather than judicial intervention.”

Barrister Reza Ali finds it interesting that the note seems to say that the SC is too eager to be the “centre stage of political wrangling and that in political fights the SC should take a back seat.” What is even more interesting, says Reza Ali, is that Justice Minallah has used the expression that the CJ owes “a fiduciary duty of care as master of the roster. It’s an interesting term because usually this is used in matters of corporate dealings. To use this for a judge is a little unprecedented. I think it’s welcome because even judges should also be held to this standard.”

Speaking about the note overall, Reza Ali explains that: “The note mirrors Justice Mansoor Ali Shah and Justice Mandokhail and Justice Yahya Afridi’s opinion that the suo-motu proceedings were inappropriate because these matters were sub judice.” He adds, though, that this “does not affect the three-member bench verdict at all. What it does do is that it puts a lot of pressure on the moral authority of the SC now to constitute a full bench -- which it won’t now.”

Hassan A Niazi also agrees that “With Justice Minallah clarifying that he never recused himself from hearing the case, the answer to the question of whether the SC verdict was 4-3 or 3-2 has become much more complicated and casts a cloud over the three-member bench’s verdict.”

Asking “How do we resolve a dispute where two groups of judges both believe they gave the majority decision?”, he says: “The simplest solution is to form a full court hearing to authoritatively decide the issue. This should have been done as soon as disagreements arose, but it has been stubbornness on the part of the CJ to refuse to do so. This opinion is a consequence of that stubbornness.” However, he does caution that “the government shouldn’t get any ideas that they can disobey the SC verdict because they believe it is a 4:3 decision...they would still likely be in contempt of the Lahore High Court decision.”

For lawyer Waqqas Mir “Justice Minallah’s opinion is the latest powerfully written reminder that a significant number of Supreme Court judges feel aggrieved by what they see as arbitrary exercise of discretion when it comes to exercise of suo-motu powers and constitution of benches. And they are making clear their concern about the credibility of the court as an arbiter of constitutional law disputes. Commentators rushing to point out that the decision is 3-2 are missing the forest for the trees. The legal result of a case won’t matter as much when at home and beyond it is seen as lacking legitimacy.”

Speaking to the issue of whether the fact that Justice Minallah signed the February 27 judicial order that authorized a reconstitution of the bench, lawyer Moiz Jaferii says that he is “still clear that the effect of the judicial order signed by all nine members on Feb 27 clearly allowed for the chief justice to reconstitute the bench and the next bench of five started proceedings afresh. However, now that all four judges have attempted to argue that this is not reflective of what was agreed between the judges in the ante room which is why they all agreed to sign onto reconstituting the bench; I think this isn’t a controversy that will go away. This will not affect the legality of the verdict currently in the field and it must be implemented. However, it will give the government plenty of additional room to create further controversy and try to work the divide in the court to their advantage.”

However, Salman Raja points out that “Justice Minallah’s note doesn’t address the effect of the order made by nine honourable judges on Feb 27. I wish it did. Justice Mansoor Ali Shah’s opinion also did not deal with the Feb 27 order. The critical question to ask is whether the five member bench that was reconstituted and commenced hearing during the afternoon of Feb 27 a new bench or was it a continuation of the original nine member bench? In my view the Feb 27 order resulted in the honourable chief justice creating a new bench altogether. Consequently, the proceedings of the reconstituted bench culminated in a 3:2 decision. The orders passed by two honourable judges as part of the lapsed nine member bench did not become a part of the proceedings before the reconstituted five member bench.”

Explaining that “the note echoes the discomfort expressed by other judges over the Supreme Court taking up the matter while it had already been decided by one high court, and was pending before another”, Salaar Khan says that it is “hard to make a case that this note changes much, in terms of what the decision of the majority was. At best, this note draws attention to what certain judges of the court see as an incongruence between what happened in private, and what made it to the public. That all nine judges of the original bench eventually signed an order asking that the bench be ‘reconstituted’ remains an inescapable fact. As long as that order has nine signatures -- however that came to be -- the balance still tilts in favour of this being a 3:2 decision.”

In a Twitter thread, lawyer Reema Omer says that “What is happening in the SC today is related to a separate constitutional crisis involving independence and impartiality of the judiciary. It deserves consideration on its own merits -- not as a subsidiary issue linked with Art 224, date of elections, or the ‘4:3 vs 3:2’ matter”. She adds that: “We have seen certain judges being excluded from deliberations when orders of the court are written; and authority to invoke ‘suo motu’ given exclusively to the CJP through a judgment, further concentrating powers in the CJP’s hands. Those aggrieved by these extraordinary manipulations and abuse of power are now speaking up, asserting their independence, and publicly recording their dissent with how the SC is being managed. It is an unraveling -- perhaps a necessary one -- that has been long in the making.”