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• In address to NY bar, Justice Minallah says judges who legitimise unconstitutional acts are liable for misconduct
• Reveals what happened when IHC ‘opened at midnight’ ahead of no-trust vote against Imran Khan
NEW YORK: Courts must remain open and vigilant, whenever there is a threat of martial law in Pakistan, Supreme Court Justice Athar Minallah said.
During an address to the New York City Bar Association on Tuesday, he acknowledged the apex court’s past shortcomings in legitimising unconstitutional acts, and asserted that the court has a sacred obligation to defend the Constitution.
Failure to uphold this obligation constitutes misconduct and warrants accountability, he said.
Emphasising the judiciary’s role in safeguarding the Constitution, Justice Minallah regretted that when in power, political parties criticise the courts for judgements that do not suit them but praise the same judgements when they are in opposition.
The judge addressed the court’s historical shortcomings, stating, “This is a very unflattering issue, but we cannot erase facts from history books. Yes, the Supreme Court’s record has been what it should not have been.”
Highlighting past decisions, he said, “The Supreme Court has no authority to legitimise any unconstitutional act, let alone the abrogation of the Constitution.”
“When the Constitution is violated, and if the Supreme Court fails in its obligation to protect and defend the Constitution, in my opinion, judges are committing misconduct and they must be proceeded against,” he said.
In the context of Pakistan’s experiences with martial law (1958-1971, 1977-1988, and 1999-2008), Justice Minallah expressed his desire for the courts to remain open during such times, saying, “I wish every time there’s a threat of martial law, the courts remain open.”
The judge revealed that his decision to open the Islamabad High Court at midnight on April 9, 2022, the day then-prime minister Imran Khan was ousted, was part of a broader initiative to ensure the court’s accessibility.
Upon his appointment as IHC chief justice, he said, he issued a circular mandating 24/7 operations and implemented a procedure allowing individuals to file petitions at any time, which would be sent to him via WhatsApp, even in the early hours of the morning.
Justice Minallah highlighted the impact of this initiative, stating, “1,400 [people] benefited from that circular. Nobody knows about them because they were not political people, they were ordinary people. Only the Islamabad High Court did that. The high court was open for everyone.”
Justice Minallah clarified that media reports were incorrect when they claimed he had gone to the high court on April 9. “I was in my pyjamas […] when I was informed that Supreme Court Bar Association President Ahsan Bhoon wants to file a petition. But all petitions were frivolous and I didn’t pass any order.”
The judge added that while he was at home, a private television channel falsely reported that he had reached the high court. “My wife told me this […] and I said, ‘really’?”
Justice Minallah emphasised that he did not pass any orders that night. “Despite that, a political narrative was created.”
He regretted that courts were not open during past instances of martial law. “I wish they were open on July 5 when General Ziaul Haq was removing an elected prime minister. I wish they were open on Oct 12 when General Pervez Musharraf had thrown out an elected prime minister.”
Commenting on the situation during Imran Khan’s removal from office, he said: “If anyone had attempted to remove unconstitutionally an elected prime minister…then it would have been a test of the Islamabad High Court, whether it stands to uphold the Constitution or not.”
Referring to the Memogate case and the subsequent removal of then-PM Yousaf Raza Gilani, he emphasised that apex court should not involve itself in political matters.
Justice Minallah revealed the difficulties in appointing the judges, noting that it took years to finalise appointments due to systemic resistance. He underscored the judiciary’s vulnerability to public scrutiny and social media trolling, sharing personal experiences of his children’s pictures and personal data being leaked.
He lauded the 18th Amendment as a significant step for Pakistan, but criticised the 19th Amendment as contrary to the principles of judicial independence championed by the lawyers’ movement.
Justice Minallah regretted that the apex court did not meet the expectations of thousands of young Pakistanis, who supported the lawyers’ movement and urged the judges to always remember their oath to uphold the Constitution.
Published in Dawn, July 25th, 2024
