Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
As the government pushes to pass the 27th Constitutional Amendment Bill in the National Assembly today (Tuesday), alarm bells are ringing across the judicial community as letters arrive at the Supreme Court on Monday, urging a timely and decisive response.
Letters from serving and retired judges, lawyers and former judicial assistants asked Chief Justice of Pakistan (CJP) Yahya Afridi to convene a full court meeting to chalk out a unified response before the curtain falls on the independence of the judiciary.
Senior Judge Justice Syed Mansoor Ali Shah wrote to CJP Afridi, urging him to engage the executive and make it clear that no constitutional amendment should be passed without prior consultation with judges of all constitutional courts.
In his letter, a copy of which was also sent to all judges of the Supreme Court, Justice Shah also asked the CJP to convene a full court meeting, or preferably a joint convention of all judges of the constitutional court, to deliberate on the implications of the proposed amendment.
Justice Shah stated that the proposed Federal Constitutional Court “does not arise from any genuine reform program; it is rather a political device to weaken and control the judiciary.”
He pointed out that his judges would be appointed without constitutional parameters, as is the case with the Constitutional Chamber.
“Such an agreement confers decisive power on the executive and invites manipulation of the judicial process. A court born of the will of the executive cannot be independent,” he wrote.
“A controlled constitutional court may serve temporary political interests, but it will permanently damage the Republic. The independence of the judiciary is not a privilege of the judges, it is the protection of the people against arbitrary power. This moment demands that you, as Head of the Institution, raise the alarm before the independence of the judiciary is irretrievably lost.”
Meanwhile, Justice Athar Minallah wrote separately to CJP Afridi, raising questions about the conduct of the judiciary in the face of efforts to weaken democracy.
Justice Shah further questioned the very need for a new court. “The most fundamental question that must be asked is: Why a Constitutional Court? What constitutional vacuum does it seek to fill? The Supreme Court of Pakistan, as it stands, particularly in its pre-Twenty-Sixth Amendment form, already exercises comprehensive constitutional, civil and criminal jurisdiction under Articles 184, 185, 186 and 187 of the Constitution,” he wrote.
He explained that the court’s internal committee system assigns courts and rates cases, guaranteeing transparency and institutional equity. “This structure has served the Republic since independence (nearly seventy-eight years) without compromising the Court’s role as the final arbiter of law and protector of fundamental rights,” Justice Shah said.
He rejected comparisons with civil law systems such as those of Germany, Italy and Spain, noting that their constitutional courts were born in response to totalitarian regimes and lacked traditions of judicial review.
“Pakistan’s system, however, evolved from the common law tradition of the United Kingdom, where the Supreme Court acts as the single highest court for all matters: constitutional, civil and criminal alike,” he wrote.
Justice Shah argued that there was “no structural void or historical need that justified the creation of a Federal Constitutional Court in addition to the Supreme Court.”
He also questioned whether judges of the constitutional courts (the Supreme Court, the Federal Shariat Court and the high courts) had been invited to deliberate on the proposed amendment. “If not, the process is stripped of constitutional ownership and democratic legitimacy,” he wrote.
“History does not easily forgive such abdications of duty; it records them as constitutional failures of leadership and moments when silence within institutions weakened the edifice they were meant to protect,” he warned.
The judge also asked why the government was proceeding with the 27th Amendment while challenges to the 26th Amendment were still pending before the court. “Another question arises: can a new constitutional amendment be advanced while the validity of the previous one, already questioned, remains undecided?” asked.
He noted that petitions challenging the 26th Amendment, which itself was criticized for striking at the heart of judicial independence, are still pending.
“The challenge to the Twenty-Sixth Amendment is directed at the very legitimacy of the current regime and the current leadership of the current Supreme Court. Until those issues are conclusively resolved, any further attempts to alter the judicial architecture risk camouflaging unresolved constitutional weaknesses and casting further doubt on the credibility of both the amendment process and the constitutional order.”
He cited data from the Law and Justice Commission’s 2023 Judicial Statistics to counter the argument that the new court would reduce the backlog of cases, noting that “nearly 82 percent of the 2.26 million pending cases were before the district judiciary, while the Supreme Court accounted for less than 3 percent of the total.”
Meanwhile, a separate letter written by lawyer Faisal Siddiqi and supported by several retired judges and senior lawyers described the proposed amendment as “the largest and most radical restructuring of the Supreme Court of Pakistan since the Government of India Act, 1935”.
The letter also urged CJP Afridi to convene a full court meeting, warning that failure to do so would mean accepting “the demise of the Supreme Court of Pakistan as the highest court of Pakistan.”
“If CJP Afridi does not call the full court meeting, then he should admit in a written reply that he is now reconciled to being the last Chief Justice of Pakistan,” he said. “At least by his admission, we would no longer have any expectation from His Lordship to be an advocate of the Supreme Court of Pakistan.”
In another development, 38 former SC legal assistants also wrote to CJP Afridi, urging him to convene a full court meeting to issue an institutional response against the amendment.
He was told that “your actions today will determine whether you will be known as the chief justice who stood up as a bulwark against the destruction of the Supreme Court or as someone who buried the Supreme Court.”
Advocate Maha Raja Tareen, commenting on CJP Afridi’s role, said beneficiaries are always obliged to defend the “flimsy foundations of a weak system”. Therefore, expecting the latest honorable CJP to make history “is a fallacy far removed from reality”, which will never be realized.
