Both the Shah and Minallah remained consistent in their opinions on civil liberties issues
Attorney General of Pakistan Khalid Jawed Khan arrives to attend a court hearing outside the Supreme Court building in Islamabad on April 7, 2022. PHOTO: AFP
ISLAMABAD:
Some key legal experts have described the departures of Justice Syed Mansoor Ali Shah and Justice Athar Minallah – who were known for their progressive interpretation of the Constitution and their advocacy of fundamental rights and civil liberties – as a great national loss.
“The Supreme Court has been destroyed with conscience from within. The nation and the people are mourning this tragedy. We have fallen into this abyss. It will take years to come out of it,” said former Attorney General of Pakistan Khalid Jawed Khan.
Former Additional Attorney General Tariq Mahmood Khokhar said the resignations represent the triumph of principle and conscience over expediency. “It is a case of schadenfreude: the revenge of the independent judges on the extra-constitutionalists,” he noted.
Khokhar said the serious issues of the day will not be settled by writing letters or exchanging banter. It’s about time the judges came out before they were thrown out in disgrace. He said the resignations have set the stage — discord has begun.
“It will revive and embrace all layers of the judiciary, the legal fraternity and civil society. It is futile to expect change from within the institution. Past experience is against it.
“The structural damage is too deep to allow any meaningful reform. On the contrary, there has been a steady erosion of the judicial institution — increased scrutiny, increased subjugation and enhanced replacement — in the name of reform,” Khokhar said.
Both Justice Shah and Justice Minallah remained consistent in their opinions on issues relating to civil liberties, democracy, women’s rights and minorities. However, it is also a fact that political leaders’ view of them has changed over time.
When they gave relief to PML-N leaders against the will of the “powerful circles”, PTI supporters got angry. Later, when both judges held that PTI was entitled to reserved seats after the general elections, the criticism against them started from the PML-N side.
As a judge of the Islamabad High Court, Justice Minallah provided relief to journalists and political leaders under the PTI rule.
When he gave relief to Nawaz Sharif and Maryam Nawaz in the Avenfield case, he faced ruthless criticism from PTI workers on social media and even some Supreme Court judges were annoyed with him.
Both Justice Shah and Justice Minallah were not in the good books of former Chief Justice Mian Saqib Nisar. Justice Syed Mansoor Ali Shah was among the Supreme Court judges who saved Justice Qazi Faez Isa from impeachment.
Their elevation to the apex court also has an interesting background.
As Chief Justice of the Lahore High Court, Justice Shah initiated judicial reforms in the Punjab judiciary. A majority of the lawyers were unhappy with him. Finally, former Chief Justice Mian Saqib Nisar recommended him for elevation to the Supreme Court in January 2018.
When Justice Minallah, as Chief Justice of the Islamabad High Court (IHC), started giving relief to PTI leaders during the PDM government, the “powerful circles” managed his elevation to the Supreme Court.
However, Athar Minallah’s most significant contribution to the judicial system was the appointment of independent judges to the IHC.
When both judges opposed the Supreme Court’s suo motu proceedings in the 90-day election case, they faced intense criticism from PTI supporters.
Later, when the PTI was denied a level playing field in the February 8 elections, both judges directed the Election Commission of Pakistan (ECP) to redress the party’s grievances. They also granted bail to Imran Khan and Shah Mahmood Qureshi in the cypher case.
Both judges were aligned with former CJP Qazi Faez Isa during his tenure.
Ex-CJP Isa was seen as anti-PTI and the government exploited that perception. On the other hand, Shah and Minallah expected CJP Isa to remain neutral in the clash between the security establishment and the PTI.
When six IHC judges wrote a letter protesting the interference of intelligence agencies in judicial affairs, CJP Isa was reportedly outraged – yet Justice Minallah stood by them.
The current government got annoyed with Justice Shah and Justice Minallah in the case of reserved seats.
Both judges were part of the three-judge bench that had suspended the ECP’s notification on the distribution of reserved seats among other political parties.
It is learned that former CJP Isa was unhappy with that order. Eventually, a full court was set up to hear the case of reserved seats.
Despite all the pressure, the majority verdict – headed by Justice Syed Mansoor Ali Shah – ruled that the PTI was entitled to reserved seats after the February 8 elections. The court directed the ECP to allot 78 reserved seats in the national and provincial assemblies to the PTI.
However, the ECP did not implement the judgment.
This judgment in the reserved seats case became the main reason for the anger of the government against Justice Shah and Justice Minallah.
After the passage of the 26th Constitutional Amendment, the executive branch did not appoint Justice Shah as the Chief Justice of Pakistan. Justice Yahya Afridi became the new CJP.
CJP Afridi, Justice Shah and Justice Minallah were once partners in a law firm before their elevation to the bench. However, their relationship reportedly deteriorated during CJP Afridi’s tenure.
Relations between them became strained when CJP Afridi did not allow Justice Shah to travel abroad. Likewise, a sub judice case was withdrawn from the court, led by him. Despite Shah’s request, a constitutional court did not rule on the 26th Amendment case.
The over 50-year relationship between Justice Afridi and Justice Minallah was affected after the transfer of judges from various high courts to the Islamabad High Court (IHC). Judge Minallah had not expected the CJP to accept these transfers.
Later, both the judges wrote a letter to CJP Afridi asking him to convene a full bench to discuss the proposed 27th Amendment. However, no meeting was called. In the end, both decided to resign with a heavy heart.
