Supreme Court's Justice Athar Minallah has observed that the release of former prime minister Imran Khan and former foreign minister Shah Mehmood Qureshi on bail during elections will help ensure the conduct of 'genuine elections' and thus enable the people to exercise their right to express their will effectively and meaningfully.
He made these observations in an additional note on the bail applications of former prime minister and Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan and former foreign minister and PTI Senior Vice Chairman Shah Mehmood Qureshi.
"There are no exceptional circumstances to decline the concession of bail," Justice Minallah observed, further adding that Imran and Qureshi are alleged to be involved in an offence which does not fall under the category of heinous offences which threaten the safety and security of society such as rape, child abuse, homicide etc.
"The investigation has been completed, and trial is in progress. The trial is entirely dependent on documentary evidence. The incarceration of the petitioners will not serve any useful purpose," observed Justice Minallah.
Justice Minallah was part of the three-judge bench, which on Friday granted bail to Imran and Qurshi in the cypher case.
"Questions of public importance that have arisen for the consideration of this court are; whether, during the election period, candidates who intend to contest the elections or who are affiliated with a political party and their participation in the political process is important for the registered voters, should remain incarcerated, or, whether, in such an eventuality granting bail ought to be considered favorably as a rule and declined only in exceptional circumstances e.g when there is likelihood of abscondence or there is threat to the society because there are grounds to believe that the accused may repeat the offence," Justice Minallah contended.
"Our Constitution, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights unambiguously recognise 'genuine elections' as the only true manifestation of the expression of the will of the people."
He further observed, "The concept of genuine election is the key to levelling the playing field for all the stakeholders."
"When all the political competitors do not enjoy the same advantages and disadvantages during the election period, then the fundamental rights of the citizens are breached and, simultaneously, the Constitution is gravely violated."
Thus, he argued that it is inevitable to ensure that "every political competitor is treated equally without discrimination and everyone has the same chance to succeed."
"Incarceration of a political competitor during the period of elections, except when it is necessary due to exceptional circumstances, gravely affects the fundamental rights of the voters and prejudices the genuineness and integrity of the elections.
"Discrimination or intimidation on the basis of political opinions are alien to the concept of genuine elections, and even such a perception would be sufficient to compromise the integrity of the electoral process and relegate it to the status of sham elections."
Justice Minallah observed that every candidate and political party must have an equal opportunity to reach out to the citizens and access public resources, including print and electronic media.
"The test of 'genuine elections' is the ability of the voter, political worker, candidate and political party to effectively exercise and enjoy the aforementioned rights without discrimination or any threat of intimidation, direct or indirect."
Curiously, he noted that the previous general elections, held in 2018, "were an example of denying equal treatment to a particular political party."
"It is the duty of the Election Commission and the respective governments to ensure that the people are facilitated in expressing their will through 'genuine election'. It is also their duty to ensure that there is no perception of oppression or repressive actions against one political party while others are treated favourably."
"The unflattering electoral history and oppressive treatment of political dissidents during the period of elections necessitates considering the grant of bail favourably as a rule."