Justice Minallah further wrote in his dissenting noted that the role of the top court in perpetuating brazen violations of fundamental rights through
the use of arbitrary and draconian powers by the NAB and its complicity, despite being a guardian of guaranteed rights, is a blemish difficult to wash away.
He further added that slain prime minister Benazir Bhutto and her husband, President Asif Ali Zardari, had been acquitted by the Supreme Court because it was declared that their trial was not fair on account of the bias of the judges on the Ehtesab Branch.
"The powers of the bureau were subsequently used to prosecute, humiliate and violate the dignity of other former prime ministers, Mian Mohammad Nawaz Sharif, Shahid Khaqan Abbasi, Yousaf Raza Gillani etc," he wrote, adding, "It is ironic that at present, the respondent has fallen victim after his removal from the office of prime minister."
"The perception that the establishment and complicit courts are responsible for such grave abuses of human rights and humiliation of the representatives of the people does not appear to be unfounded."
When the deposed prime minister Zulfikar Ali Bhutto was arrested and sent to the gallows by the Supreme Court, he was not an ordinary prisoner or convict, Justice Minallah observed. He added that he was a victim of the state's coercive apparatus imposed by a uniformed usurper, who was purportedly given legitimacy by this court.
"Likewise, Shaheed Benazir Bhutto and Mian Mohammad Nawaz Sharif were made to profoundly suffer on account of the grave abuse of the powers vested in the bureau."
Justice Minallah said: "They were not ordinary prisoners and convicts because their persecutions were perceived to be motivated. They had millions of followers, and the perception that, as representatives of the people, they were being humiliated and harassed for other than bona fide reasons on the basis of alleged corruption and corrupt practices at the behest of unelected office holders was not without substance."
"It is ironic that yet another elected former prime minister, the respondent, is incarcerated today and facing multiple trials, some having ended in convictions and also set aside by appellate forums."
Justice Minallah said Imran Khan, like other former elected prime ministers, has millions of followers across the country, as evidenced by the results of February 2024's general elections.
"He is definitely not an ordinary prisoner or convict," said Justice Minallah.
"The courts and the judges can no more bury their heads in the sand by ignoring the obvious realities."
Supreme Court's Justice Athar Minallah has observed that the perception that the establishment and complicit courts are responsible for grave abuses of human rights and humiliating representatives of the people does not appear to be unfounded.
"The perception of the existence of a coercive apparatus of the state cannot be ignored by a constitutional court, particularly having regard to the unjustified treatment of representatives of the people in the past," observed Justice Minallah in this dissenting note issued for the Supreme Court's majority decision to turn down a request by the Khyber Pakhtunkhwa government to live stream proceedings of the government's appeal of the NAB Amendments case. A five-judge bench, headed by Chief Justice Qazi Faez Isa, had heard the case.
Justice Minallah's note comes at a time when members of the top court have openly questioned certain court decisions.
In this 13-page note, Justice Minallah added that the perception of the complicity of the court in or by allowing the elected representatives to be humiliated, harassed and persecuted for other than bonafide reasons are not unfounded.
Justice Minallah said that proceedings during the previous hearings held on October 31, 2023, and May 14, 2024, had been streamed live, adding that the request made by Imran Khan, the respondent, to enable him to argue was allowed and he made his first appearance on May 16, 2024.
"It was on the said date that live streaming was discontinued without an order having been passed by the bench," Justice Minallah said.
He further observed that an appeal arising from the proceedings under Article 184(3) of the Constitution was a matter of public importance, and thus, in each case, the public has a right to access the court proceedings through live streaming.
"As a consequence, the discretion exercised by a bench to order live streaming or otherwise has to be guided and in accordance with the right guaranteed under Article 19-A."
Justice Minallah's note further added: "The exercise of discretion not to order live streaming of court proceedings by a bench, to which the facility is available, will be lawful and justified only in exceptional circumstances and for compelling reasons."
The former Islamabad High Court (IHC) chief justice added that the public cannot be deprived of access to court proceedings through live streaming except in exceptional circumstances and for compelling reasons.
"Moreover, once the proceedings in a particular case have been live streamed, then they cannot be ordered to be discontinued unless the court is satisfied that it was necessary to do so in the public interest for a demonstrably substantial reason."
Justice Minallah also responded to Chief Justice Qazi Faez Isa's observation that SOPs for live-streaming by a two-member committee have yet to be finalised.
"The framing of SOPs is subject to the approval of the modalities proposed by the committee in its report by the full court," Justice Minallah said.
"However, non-framing of SOPs is not in any manner an impediment to give effect to the right recognised by a larger bench of this court, and this is obvious from the live streaming of all matters heard by the bench number 1 pursuant to the successful execution of the pilot project," Justice Minallah added.
Justice Minallah emphasised that the appeal regarding the NAB law amendment case has arisen from the proceedings heard by this Court under Article 184(3), and, therefore, it fulfils the condition of falling in the category of a matter of public importance.
"The vires of the amendments made in the Ordinance of 1999 were challenged by the respondent (Imran Khan), adding that the role of NAB itself is a matter of highest public importance.
Justice Minallah also raised questions about NAB's performance. He said there was sufficient documented evidence to show that NAB was established mainly to hold the people's chosen representatives accountable for corruption and corrupt practices.
"It was extensively used for political engineering. The draconian and arbitrary powers were used to intimidate, harass and humiliate opponents and the critics of the government."
He further said: "The arbitrary arrests and humiliation of dissenters and political opponents led to grave violations of the fundamental rights guaranteed under the Constitution."
The top court judge said that almost all those who held the public office of prime minister had fallen victim to NAB's draconian and arbitrary powers.
"The violation of the right to fair trial and due process through the use of arbitrary powers was highlighted by various constitutional courts in their judgements, including this court."