Both Shah and Minallah remained consistent in their opinions on civil liberties issues.
Pakistan’s Attorney General Khalid Jawed Khan arrives to attend a hearing in front of the Supreme Court building in Islamabad on April 7, 2022. PHOTO: AFP
ISLAMABAD:
Some key legal experts have described the resignations of Justice Syed Mansoor Ali Shah and Justice Athar Minallah, known for their progressive interpretation of the Constitution and their defense of fundamental rights and civil liberties, as a great national loss.
“The Supreme Court has been destroyed with internal collusion. The nation and the people mourn this tragedy. We have fallen into this abyss. It will be years before we come out of it,” said Pakistan’s former Attorney General Khalid Jawed Khan.
Former Additional Solicitor General Tariq Mahmood Khokhar said the resignations represented the triumph of principle and conscience over expediency. “It is a case of schadenfreude: the revenge of independent judges against extra-constitutionalists,” he observed.
Khokhar said the serious issues of the day will not be decided by writing letters or exchanging pleasantries. It was time for the judges to come into the light before they were ignominiously removed. He said the resignations have prepared the ground: dissent has begun.
“It will revitalize and encompass all levels of the judiciary, legal fraternity and civil society. It is useless to expect changes within the institution. Past experience is against it.
“The structural damage is too deep to allow any meaningful reform. Instead, there has been a steady erosion of the judicial institution – greater control, greater submission and greater replacement – in the name of reform,” Khokhar said.
Both Justice Shah and Justice Minallah remained consistent in their opinions on issues related to civil liberties, democracy, women’s and minority rights. However, it is also a fact that political leaders’ opinions of them have changed over time.
When relief was granted to the PML-N leaders against the will of the “powerful circles”, PTI supporters became angry. Later, when both judges held that the PTI was entitled to reserved seats after the general elections, criticism began against them from the PML-N.
As a judge of the Islamabad High Court, Justice Minallah granted relief to journalists and political leaders during the PTI government.
When he relieved 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 got upset 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 dismissal.
His elevation to the supreme court also has an interesting background.
As Chief Justice of the Lahore High Court, Justice Shah initiated judicial reforms in the Punjab judiciary. Most of the lawyers were not happy 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 granting relief to PTI leaders during the PDM government, the “powerful circles” secured 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 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 cipher case.
Both judges were aligned with former CJP Qazi Faez Isa during their tenure.
Former CJP Isa was seen as anti-PTI and the government took advantage of that perception. On the other hand, Shah and Minallah hoped that the CJP Isa would remain neutral in the standoff between the security establishment and the PTI.
When six IHC judges wrote a letter protesting the interference of intelligence agencies in judicial matters, CJP Isa was reportedly upset, but Justice Minallah supported them.
The present government was upset with Justices Shah and Minallah in the reserved seats case.
Both the judges were part of the three-judge bench that had stayed the ECP’s notification on the distribution of reserved seats among other political parties.
It was learned that former CJP Isa was unhappy with that order. Finally, a full court was constituted to hear the case of reserved seats.
Despite all the pressures, the majority judgment – led 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 allocate 78 reserved seats in the national and provincial assemblies to the PTI.
However, the ECP did not carry out the sentence.
This judgment in the reserved seats case became the main cause of the government’s anger against Justice Shah and Justice Minallah.
After the passing 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 partners in a law firm before they were promoted to the bench. However, their relationship reportedly deteriorated during CJP Afridi’s tenure.
The relationship 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 headed by him. Despite Shah’s request, a constitutional court did not decide the 26th Constitutional Amendment case.
The over 50-year relationship between Justice Afridi and Justice Minallah took a hit after the transfer of judges from various high courts to the Islamabad High Court (IHC). Justice Minallah did not expect the CJP to consent to these transfers.
Later, both judges wrote a letter to CJP Afridi, requesting him to convene a full court meeting to discuss the 27th Amendment proposal. However, no meeting was called. Finally, both decided to submit their resignations with great regret.
