Islamabad:
A letter from the judges of the Supreme Court, Judge Mansoor Ali Shah and Judge Munib Akhtar appeared on Wednesday, reviving the debate on the management of the Judiciary of the 26th Constitutional amendment and if it must be taken by a constitutional bank or the full court.
In the detailed letter, the two higher judges questioned the decision of the President of the Supreme Court Yahya Afridi to ignore the majority opinion of the Procedures Committee in favor of constituting a complete court.
Judge Shah and Judge Akhtar recalled that, as members of the Committee formed under the Law of the Supreme Court (practice and procedure), 2023, they had on October 31, 2024, they decided to constitute a complete court to listen to requests that challenge the 26th Constitutional amendment.
“We had decided to constitute a complete court,” said the letter. However, the case was never scheduled. When the decision was not implemented, the judges continued with a letter on November 4, but even that failed to comply, he added.
They emphasized that the notes later written by the president of the Supreme Court, dated October 31 and November 5, were not shared with them. “We are forced to write now because the minutes of the meetings have risen after almost ten months, and the two notes of the President of the Supreme Court were not issued or provided to the insignificed ones,” the judges wrote. On the other hand, one of those notes was read during a meeting of the Judicial Commission of Pakistan (JCP), a forum that, they argued, had no jurisdiction in the matter. “The Judicial Commission was not the forum of such a matter, nor the decision of the committee of 31.10.2024 will be sent to any constitutional bank or committee, for the simple reason that they did not exist on that date,” they emphasized.
The two judges disagree with the sudden revelation of the procedures, questioning why the minutes that were previously restricted had been put in the public domain. They recalled that in November 2024, the committee had decided by majority that the minutes would have “restricted the circulation” and were not loaded online.
“The obvious question that arises is why the minutes have been publicly revealed despite the interdiction placed by the committee itself? This can be clear once the judicial year begins in September and the constitutional banks begin to function again,” said the letter.
The letter sheds light on the events of October 31, when both judges met the president of the Supreme Court in their cameras. They pressed for a full court to listen to the requests, citing a crisis of trust. “We underline that the very legitimacy of the Supreme Court, as well as the office of the president of the Supreme Court, was under question, and that only a transparent and collective award, by the complete court could restore public confidence,” says the letter.
However, the president of the Supreme Court resisted, maintaining that such cases could only be heard by constitutional banks freshly created under the amendment 26. The judges objected that referring the challenge to a bank constituted under the same amendment that would seriously undermine the credibility of the court.
Although the president of the Supreme Court looked for an hour to reflect, he later informed the judges in Judge Akhtar’s chambers that he had sought individually other judges. The two judges opposed abruptly.
“The act of the President of the Supreme Court of seeking opinions individually was contrary to the law and judicial practice, and the opinions obtained in this way had no legal position,” they said. According to them, consensus can only be achieved through an adequate committee or a complete judicial meeting.
Later on the same day, a formal meeting of the committee was convened, according to the letter. After the discussion, the judges voted in favor of constituting a complete court, while the president of the Supreme Court disagreed. The majority decision, registered in the minutes, was that the requests against the 26th amendment would be resolved for a hearing on November 4 before the full court.
But the decision was never made. “The decision was not implemented. The requests were not fixed before the full court on 4.11.2024,” the letter registered. When the judges wrote again to the president of the Supreme Court pointing out the breach, no response was received, he said.
On the other hand, the president of the Supreme Court issued a note and transferred the matter to the Judicial Commission, which “approved” the constitution of a bank of seven members. The judges criticized this step as an attempt to avoid the binding majority decision of the committee.
“Once again, a binding decision of the committee had no effect. The notes of the President of the Supreme Court do not provide any reason or justification for breach,” they wrote. According to the judges, this failure left the court without a collective institutional response.
“At a time when no question was more important for the court, it was necessary to immediately create a consensus by calling a complete court meeting … that the answer could only come from the judges themselves, by calling an open court or meeting in full conclave. The serious consequences of that do not happen continue to reverberate in the court, the judicial and the entire Constitutional of the Constitutional.
They also said that “the challenges for the 26th amendment continue to remain pending and a golden opportunity to decide them in the first case before the full court, they have been lost, perhaps irremediably.”
Now that the minutes and related records have been charged, the judges have demanded that their explanatory letter be placed together on the Supreme Court website. “If now is that the story then judges, at least, that the registration is completed,” they concluded.
The judges were categorical: “It was mandatory to constitute a complete court in amendment 26, and no one could cancel it. The notes of the president of the Corration undermined the majority decision.”
The refusal to constitute a complete court has invited speculations and doubts about why the beneficiary of the 26th Constitutional amendment is reluctant to examine as if the amendment were undermining the independence of the Judiciary.
The former president of the Bar Association of the Court of the Superior Court of Sindh, Salahuddin Ahmed, believes that CJP’s refusal to comply with the decision of the practice committee and procedure to enumerate the requests that challenge the 26 amendment was illegal.
“He may have been of the genuine vision that such requests should be heard by the Constitutional Bank (provided it was formed) instead of the complete court. But most of the committee felt otherwise. Therefore, the legal thing what it should do would be to place the matter before the complete court and if the majority felt that their point of view was correct and the request should not be heard until the CB had formed; Formal.
Salahuddin Ahmed says that CJP’s apprehension Afidi would undermine judicial collegiality, with respect, does not seem logical. First, collegiality cannot prioritize judicial responsibilities. Secondly, the refusal now of 1 year to let the challenges be heard at the 26th amendment, has clearly undermined (not improved) the community within the judiciary and its reputation for independence “
Finally, the former president of SHCBA affirms that this failure has led to speculation and unnecessary doubts that perhaps the reluctance to enumerate the challenges to amendments 26 was the fear that some of the 9 judges who, according to the reports, agreed the requests should not be listed, perhaps could change their mind after the arguments in an open court or in a formal meeting, he adds.
The lawyer Rida Hosain says that the reluctance of CJP Yahya Aphridi to place the requests that challenge the amendment 26 before a complete court is inexplicable.
“The statement of the CJP that he turned informally to the judges that his point of view is frankly absurd. The questions that should have been determined in an open hearing room are being decided behind closed doors. As follows, the CJP has violated a binding decision of the committee and eroded public confidence in the judges. He adds.
Rida Hosain also states that Judges Mansoor Ali Shah and Munib Akhtar have said that if the story judges, then the record is completed. The 26th amendment has allowed the Martial Court of civilians, the capture of the Superior Court of Islamabad and the reversal of the reserved seats. Although these disastrous decisions were made, the constitutional validity of the 26th amendment remained in dispute. If the 26th amendment is ultimately annulled, the decisions taken by the Constitutional Bank will be questioned. This is not a question for history to judge. The only way to follow is that the requests will be presented before the full court (as existed before the approval of the 26th amendment), “he also says.
The defender of Mirza Moiz Baig said that the letter generates serious concerns about the role of the president of the president. While CJ Aphridi has enjoyed an impeccable reputation, its recalcitorance to listen to the requests that challenge the amendment 26 erodes the public’s confidence in the Supreme Court and in the office of the President of the Supreme Court. In addition, with the government subsequently amending the Law of Practice and Procedure to deliver the majority to the CJ, the concerns about the impartiality of the Apex Court only aggravate, he adds.
The lawyer of Atira Ikram regretted that it is unfortunate that such critical constitutional problems, such as the 26th amendment, have also become a victim of the division and discourse that prevailed in our Judiciary. “It would have been much more beneficial to restore public confidence, if the judges relegate the difference of opinion to their judgments and do not play their personal sales in public stages, usually reserved for politicians,” he adds.
