Justice Minallah commits gross impropriety

Amalendu Upadhyaya
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By Justice Markandey Katju

By issuing a detailed 26-page note attacking his Chief Justice in connection with the petition against postponement of elections in Punjab and KP, Justice Athar Minallah of the Pakistan Supreme Court has committed gross impropriety and indiscipline.

It is a long-standing, well-established, unwritten convention in the judiciary that sitting judges should only speak through their judgments, and not go into the public domain. By issuing this note Justice Minallah has flagrantly violated that convention, and shown lack of the self restraint expected of judges of a superior court.

In this connection, one may mention an incident in judicial history.

Lord Atkins, a judge of the British House of Lords, wrote a famous dissenting judgment in Liversidge vs Anderson (1942) A.C.206. One of his brother judges on the bench, Lord Maugham, issued a press note criticising Lord Atkins’ judgment. For this undignified behaviour, Lord Maugham was severely criticised and not given any further judicial assignment in England..

Justice Minallah in his note has said that political disputes should be left to be decided by Parliament, and the judiciary should not hear such cases. What he forgets is that some disputes are not purely political but are politico-legal.in nature, and these latter have to be decided by the court. The case before the Pakistan Supreme Court was of the latter kind. It sought enforcement of Article 224(2) of the Pakistan Constitution, which says that elections to a Provincial Assembly must be held within 90 days of dissolution of the Assembly. The Punjab Assembly had been dissolved on18th January, and therefore elections should have been held by 18th April, but the Election Commission of Pakistan, obviously under some pressure, had postponed them to 8th October, a clear transgression of Article 224(2).

Should the Court not have enforced Article 224(2) and stood silent?

Justice Minallah’s logic is that since this is a political matter it should have been left to Parliament to resolve. But the Pakistan Parliament is dominated by the ruling PDM which does not want early elections, since it would be routed by Imran Khan’s PTI ( as all opinion polls indicate ). Hence without the intervention of the court  Article224(2) would have remained unenforced

Justice Minallah says by giving such a judgment the court is a loser. But how? Does the court become a loser by enforcing the Constitution?

On the contrary, in my opinion, its prestige goes up.

Justice Minallah has delivered sermons and homilies in his note e.g. that one should not have ego. In fact he reveals his own inflated ego and lack of any sense of propriety by publicly attacking his own Chief Justice, just because he was not kept in the 5 member bench. I too have been a judge ( of the Allahabad High Court and Supreme Court of India ), but I never objected to being placed on any particular bench by the Chief Justice, or not being placed on any particular bench.

Justice Minallah says that the Full Court of the Supreme Court ( i.e. all judges sitting together ) should have heard the case. Surely he is senior enough to know that constitution of benches is the sole prerogative of the Chief Justice, who is master of the roster. The Chief Justice alone decides which judge will sit on which bench, and how many judges will be on a particular bench.

While delivering a lecture in his note that judges should not dabble in politics ( which the 3 judge bench did not do, but only enforced a constitutional provision ), he himself dabbled in politics by saying in his note that Imran Khan and PTI members should not have resigned from Parliament, Imran Khan should not have dissolved the Punjab and KP Assemblies, etc, etc.

I regret to say this, but Justice Minallah has displayed his total lack of fitness to be a judge.


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