KARACHI: In his note, Justice Minullah has said that the public’s confidence is lost by the perception of the judiciary as politically biased and the judges as ‘hidden politicians’. Legal experts say that, while Justice Minullah’s note may not affect the outcome of the Supreme Court’s election decision, it points to the judicialization of politics — and it is a controversy that is far from over.
High Court lawyer and former LUMS faculty Hasan Abdullah Niazi says, “Justice Minullah’s note brings to light the pitfalls of politics in the judiciary. Believing in a fair process is not as important as the results. If the chief If the justices want public confidence in the judiciary to be maintained, these issues cannot be ignored any longer.
But Supreme Court advocate Salman Raja read Justice Minullah’s political note differently. He says that half of Justice Minullah’s note is right that courts should not get involved in political questions. But then the problem is: What is the political question? Any decision which has political consequences is not a decision dealing with a political question. Justice Minullah himself observed that where legal and constitutional issues are involved, courts must decide questions of law even if the issue is political. If the government of the day says that we will not hold elections according to the constitution, it is not a political question but a clear question of constitutional requirements and limitations. Parliament is not a court. It decides according to the will of the political majority within the Parliament. This majority cannot violate the constitution… such matters should come to court.
Answering the same question, lawyer Salar Khan says, “While there are arguments to be made to examine the motives behind the dissolution — as it also relates to the right to public representation — it seems that the matter is a legislative one.” will be left for amendment in. instead of judicial intervention.
Barrister Raza Ali finds it interesting that the note seems to suggest that the Supreme Court is “eager to become the center stage of political wrangling and that the Supreme Court should take a back seat in political battles.” Even more interesting, says Raza Ali, is that Justice Minullah used the phrase that the Chief Justice has a “fiduciary duty of care as the master of the roster. It is an interesting term because Usually it is used in corporate dealings. It is a bit unusual for a judge to use it. I think it is welcome because judges should also be held to this standard.
Talking about the note as a whole, Raza Ali states that: “The note mirrors the opinion of Justice Mansoor Ali Shah and Justice Mandukhil and Justice Yahya Afridi that Somoto’s action was inappropriate as these matters were sub judice.” However, he added that this “doesn’t affect the decision of the three-judge bench. What it does is it puts a lot of pressure on the moral authority of the Supreme Court to now constitute a full bench – – which will no longer do so.
Hasan A. Niazi also agrees that “with Justice Minullah’s clarification that he never recused himself from hearing the case, the answer to the question whether the Supreme Court decision was 4-3 or 3-2 , has become much more complicated and clouded by the judgment of the three-judge bench
Asking, “How do we resolve a dispute where two groups of judges believe they have given a majority decision?”, he says: “The simplest solution is to have an arbitral tribunal decide the issue. should be given a full judicial hearing. It should have been done as soon as the dispute arose, but the refusal of the Chief Justice to do so is obstinate. This opinion is the result of that obstinacy.” However, he cautions that “the Govt. should not think that they can disobey the Supreme Court’s decision because they think it is a 4:3 decision… they will still be guilty of contempt of the Lahore High Court’s decision.”
For Vakil Waqqas Mir, “Justice Minullah’s opinion is the latest powerful written reminder that a significant number of Supreme Court judges are unhappy with the way they exercise suo motu powers and when it comes to bench formation. see as an arbitrary exercise of discretion. And they are making clear their concern about the Court’s credibility as an arbiter of constitutional law disputes. Commentators are quick to point out that the decision 3 -2 is missing the forest for the trees. The legal outcome of a case does not matter as much when it is seen as lacking legitimacy both at home and abroad.”
Speaking on the issue of whether Justice Minullah signed the February 27 court order that allowed the bench to be reconstituted, lawyer Moeez Jafri says he is “still clear that on February 27 all The nine-member bench signed the order. The Chief Justice was expressly allowed to reconstitute the bench and the next five-member bench began the proceedings afresh. However, now that the four judges have discussed the matter, tried to do that it does not reflect what was agreed between the judges in ante-room, that is why they all agreed to sign the reconstitution of the bench. I think it is not a dispute that will go away. This will not affect the legality of the decision which is currently in the field and should be implemented. However, it will allow the government to create more controversy and use the division in the court to its advantage. There will be plenty of extra scope to try.”
However, Salman Raja points out that “Justice Minullah’s note does not address the effect of the order of nine honorable judges on February 27. I wish it did. Justice Mansoor Ali Shah’s opinion also failed to follow the order of February 27. Important question That is, was the five-member bench which was reconstituted on the afternoon of February 27 and the hearing commenced, a new bench or was it a continuation of the original nine-member bench? I think the orders of February 27 As a result of the letter, the Hon’ble Chief Justice constituted a new bench. Consequently, the proceedings of the reconstituted bench ended in a 3:2 decision. He was not part of the proceedings before the reconstituted five-member bench.
Explaining that “the note echoes the disquiet expressed by other judges at the Supreme Court taking up a matter which has already been decided by one high court, and is pending in another court. “It is difficult to make the case,” Salar Khan says, “that the note changes too much in terms of what the majority decided. At best, the note draws attention to the fact that some of the Court’s judges who What a contrast between something that happened in private, and what happened in public. That all nine judges on the original bench eventually signed an order calling for the bench to be reconstituted. An inescapable reality. As long as the order has nine signatures — however it has — the balance is still 3:2 in its favor.”
In a Twitter thread, lawyer Reema Umar said, “What is happening in the Supreme Court today is a separate constitutional crisis involving the independence and impartiality of the judiciary. It deserves to be considered on its own merits.” is — not as a subsidiary issue connected with Art 224, the date of elections, or the ‘4:3 vs 3:2’ issue. She adds: “We have seen that when court orders are written, certain Judges are kept out of the discussion. And the power to invoke ‘su motu’ is exclusively vested in the Chief Justice by a judgment, further powers being concentrated in the hands of the CJP. People disturbed by these extraordinary manipulations and abuses of power are now speaking out, demanding their independence, and publicly recording their displeasure with how the Supreme Court is being managed. It’s a solution — perhaps a necessary one — that’s been a long time in the making.”
