Shah and Minallah have remained consistent in their views on civil liberties issues.
Pakistan’s Attorney General Khalid Jawed Khan arrives to attend a hearing outside the Supreme Court building in Islamabad on April 7, 2022. PHOTO: AFP
ISLAMABAD:
Some key legal experts have described the resignations of Justices Syed Mansoor Ali Shah and Athar Minallah – known for their progressive interpretation of the Constitution and upholding fundamental rights and civil liberties – as a great national loss.
“The Supreme Court has been destroyed with connivance from within. The nation and the people are mourning this tragedy. We have fallen into this abyss. It will be years before we emerge from it,” said former Attorney General of Pakistan Khalid Jawed Khan.
Former Additional Attorney General Tariq Mahmood Khokhar said the resignations represented the triumph of principle and conscience over expediency. “It’s a matter of schadenfreude: the revenge of independent judges on extra-constitutionalists,” he stressed.
Khokhar said the serious issues of the day will not be resolved by writing letters or exchanging pleasantries. It is past time for judges to come forward before being ignominiously ousted. He said the resignations had set the stage: dissent had begun.
“This will invigorate and embrace all levels of the judiciary, legal fraternity and civil society. It is futile to expect change from within the institution. Past experience speaks against this.
“The structural damage is too deep to allow for meaningful reform. On the contrary, there has been a steady erosion of the judicial institution – strengthened control, strengthened submission and strengthened replacement – in the name of reform,” Khokhar said.
Justice Shah and Justice Minallah have remained consistent in their opinions on issues related to civil liberties, democracy, women’s and minority rights. However, it is also true that political leaders’ opinions about them have changed over time.
When they granted relief to PML-N leaders against the wishes of “powerful circles”, PTI supporters were angry. Later, when the two judges ruled that the PTI was entitled to reserved seats after the general elections, criticism against them started from the PML-N side.
As a judge of the Islamabad High Court, Justice Minallah granted relief to journalists and political leaders during PTI rule.
When he relieved Nawaz Sharif and Maryam Nawaz in the Avenfield case, he faced merciless criticism from PTI workers on social media, and even some Supreme Court judges were annoyed with him.
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 supreme court also has an interesting history.
As the Chief Justice of the Lahore High Court, Justice Shah initiated judicial reforms in the Punjab judiciary. A majority of lawyers were unhappy with him. Eventually, former Chief Justice Mian Saqib Nisar recommended his elevation to the Supreme Court in January 2018.
When Justice Minallah, as the Chief Justice of the Islamabad High Court (IHC), started granting relief to PTI leaders under the PDM government, the “powerful circles” managed his elevation to the Supreme Court.
However, Athar Minallah’s most significant contribution to the judiciary was the appointment of independent judges to the IHC.
When the two judges objected to the Supreme Court’s suo motu procedure in the 90-day elections, they faced sharp criticism from PTI supporters.
Later, when the PTI was denied a level playing field in the February 8 elections, the two judges ordered 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.
Former CJP Isa was seen as anti-PTI, and the government exploited this perception. On the other hand, Shah and Minallah expected the 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 court matters, CJP Isa was reportedly upset – but Justice Minallah stood by them.
The current government got angry with Justices Shah and Minallah in the reserved seats case.
The two judges were part of the three-judge panel that had stayed the ECP’s notification regarding distribution of reserved seats among other political parties.
It is learned that former CJP Isa was not happy with this order. Eventually, a full court was constituted to hear the reserved seating case.
Despite all the pressure, the majority judgment – headed by Justice Syed Mansoor Ali Shah – held that the PTI was entitled to reserved seats after the February 8 elections. The court ordered the ECP to allot 78 reserved seats in the national and provincial assemblies to the PTI.
However, the ECP did not execute the judgment.
This judgment in the reserved seats case became the main cause of the government’s anger against Justices Shah and Minallah.
After the passage of the 26th constitutional amendment, the executive 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 being promoted to the bench. However, their relations 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 pending case was withdrawn from the court he headed. Despite Shah’s request, the constitutional bench did not decide the 26th constitutional amendment case.
The over 50-year-old 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 did not expect the CJP to consent to these transfers.
Later, the two judges wrote a letter to CJP Afridi, asking him to convene a full court meeting to discuss the proposed 27th amendment. However, no meeting was called. Ultimately, both decided to submit their resignations with heavy hearts.
