The Quest for Judicial Transparency: A Reflection on Justice Athar Minallah's Dissent

In the recent deliberations over the National Accountability Bureau (NAB) amendments case, Justice Athar Minallah's dissenting opinion has sparked significant discourse regarding the transparency and openness of the Supreme Court proceedings in Pakistan. As the sole dissenting voice on the five-member bench that declined the request for live-streaming, Justice Minallah's observations underscore the critical need for public access to court proceedings, especially in matters of significant public interest. This dissent highlights broader concerns about judicial transparency, public trust, and the role of the judiciary in a democratic society.

The Majority Decision and Justice Minallah's Dissent

On May 30, the Supreme Court ruled against the live broadcast or live-streaming of the NAB amendments case proceedings. The majority of the bench argued that live-streaming should be used cautiously to prevent potential exploitation and misuse for ulterior purposes. This decision came despite the Khyber Pakhtunkhwa advocate general's request for live-streaming, which was turned down.

In his 13-page dissenting note, Justice Minallah contended that there was no substantive reason or exceptional circumstance that justified denying the public their right to access the court proceedings through live-streaming. He argued that the exercise of discretion not to order live-streaming should be lawful and justified only in exceptional circumstances and for compelling reasons. Once live-streaming has commenced in a particular case, discontinuing it should only be considered if it is demonstrably necessary in the public interest.

Justice Minallah's dissent draws attention to a fundamental principle: transparency in the judiciary is essential to maintaining public confidence. Denying access to court proceedings can foster suspicions and erode trust in the judicial system. The judiciary must "walk the extra mile" to ensure transparency and to be seen as impartial, dispelling any contrary perceptions.

Historical Context and the Case of Justice Qazi Faez Isa

The issue of live-streaming court proceedings is not new in Pakistan's judicial history. On April 13, 2021, the Supreme Court, by a majority of six to four, dismissed Justice Qazi Faez Isa's application seeking permission for live-streaming the hearing of his review petition on the presidential reference against him. The reference, eventually thrown out by the apex court, accused Justice Isa of acquiring properties in London without disclosing them in his wealth returns.

In this case, the Supreme Court had recognized public access to court proceedings in all matters of public importance as a fundamental right guaranteed under Article 19-A of the Constitution. However, Justice Isa's application was dismissed on a technicality. The majority held that the modalities and details of live-streaming should be decided by a full court, while the minority approved live-streaming in principle.

Justice Minallah's note emphasized that the principles established in Justice Isa's case should guide current decisions regarding live-streaming. Public access to court proceedings enhances transparency and accountability, fundamental tenets of a functioning democracy.

Lessons from History: The Cases of Former Prime Ministers

Justice Minallah's dissent also reflects on historical instances where the judiciary's role in politically sensitive cases has been contentious. He recalled the case of former Prime Minister Zulfikar Ali Bhutto, who was executed following a Supreme Court verdict. Bhutto was seen as a victim of the state's coercive apparatus under a military regime that the Supreme Court purportedly legitimized.

Similarly, former Prime Ministers Benazir Bhutto and Nawaz Sharif faced significant persecution, perceived to be politically motivated. Justice Minallah noted that these leaders, like Imran Khan today, were not ordinary prisoners. Their incarcerations were seen as politically motivated, raising concerns about the judiciary's complicity in these persecutions.

Imran Khan, with millions of followers, is viewed similarly. Justice Minallah warned that the judiciary must avoid any perception of complicity in the political persecution of elected representatives. Transparency through live-streaming court proceedings can help mitigate such perceptions and uphold public confidence in the judiciary.

The Role of the Judiciary in Upholding Transparency

Justice Minallah's dissent underscores the judiciary's crucial role in maintaining transparency and accountability. The courts must not ignore the realities of political dynamics and the importance of public perception. He pointed out that restrictions on freedom of expression, including censorship on court reporting, are evident, further necessitating transparency in judicial proceedings.

The judiciary's decisions should reflect a commitment to openness and impartiality, especially in cases involving significant public interest and political figures. Live-streaming court proceedings can enhance public understanding and trust in the judicial process, ensuring that justice is not only done but seen to be done.

Conclusion: A Call for Judicial Openness

Justice Athar Minallah's dissent in the NAB amendments case highlights a critical aspect of democratic governance: the need for transparency in the judiciary. His observations serve as a reminder that the judiciary must strive to be seen as impartial and open, especially in politically sensitive cases. Denying public access to court proceedings can undermine public confidence and foster suspicions about the judiciary's role.

As the Supreme Court resumes hearing the NAB amendments case, Justice Minallah's call for live-streaming stands as a powerful argument for judicial transparency. The principles established in past cases, the lessons from history, and the current political climate all point towards the necessity of making court proceedings accessible to the public. In doing so, the judiciary can uphold its role as a pillar of democracy, ensuring justice is transparent, impartial, and accessible to all.