ISLAMABAD:
Former Supreme Court judge Mansoor Ali Shah has raised serious questions over what he described as the inability of the current Chief Justice of Pakistan (CJP) Yahya Afridi to defend judicial independence, arguing that a moment that demanded institutional resistance was met with silence and accommodation.
In his recent speech at Yale Law School’s Schell Center for International Human Rights on April 10, retired Justice Mansoor Ali Shah said that at a time when the dignity of the court demanded principled resistance, “the sitting chief justice offered none.”
He further deplored that the TJ had accepted the amendment and negotiated only for the preservation of his own position and title. “The silence of my colleagues was their own verdict. No collective statement. No refusal. No act of professional solidarity.”
The former judge also referred to developments following the Ittehad Sunni Council case, noting that the SC had ruled that independent candidates affiliated with the opposition were entitled to reserved seats, a decision that would have deprived the ruling coalition of a two-thirds constitutional majority.
He said the government refused to implement the ruling and took steps to avoid similar rulings in the future.
Shah claimed that the 26th Amendment, passed in October 2024, restructured the Judicial Commission of Pakistan by reducing judicial members and increasing political and executive representation to a majority of eight out of thirteen.
He added that he also ended the appointment of the chief justice based on seniority, empowering a parliamentary committee to select among the three most senior judges.
“No criteria were prescribed. No reasons were demanded.”
The panel of three changes what a judge must be to become a CJ. Under seniority convention, a judge had no incentive to cultivate the favor of the executive; the position was determined by an objective rule. The panel turns the presidency of the Supreme Court into a competition.
The committee will favor the candidate who is least likely to cause institutional unrest, whose record suggests accommodation rather than independence, whose jurisprudence signals cooperation rather than resistance. “This creates a regressive incentive that shapes judicial behavior years before the time of appointment.”
Despite these concerns, Judge Shah said he initially chose to remain within the system.
However, Justice Shah said he decided to stay because there was still a sliver of hope that the SC, as a full court, would rise to examine the amendment and reclaim its constitutional role. “I trusted that institutional reason and constitutional morality would prevail.”
He said the 27th Amendment, passed in November 2025, completed “a dismantling of the existing judicial structure” by creating the Federal Constitutional Court above the SC, while stripping the latter of its constitutional jurisdiction and reducing it to an appellate function.
Shah claims that the 27th Amendment came in November 2025 and completed the dismantling. It created above the SC a new FCC composed of judges selected under the new appointment process controlled by the executive. The remaining SC was stripped of constitutional jurisdiction and reduced to an appellate body. The amendment introduced the power to transfer high court judges between provinces without their consent, a mechanism to purge independent jurists.
He further explained the implications of the amendment.
“The 27th Amendment not only stripped the Supreme Court of constitutional jurisdiction. It created above it a new Federal Constitutional Court, composed of judges selected under the executive-controlled appointment process, and endowed that court with the power to reject seventy-eight years of Supreme Court jurisprudence as merely persuasive. The FCC has already exercised that power. In its first decisions, it has declared that Supreme Court precedents—the entire accumulated body of constitutional adjudications from independence to the present—not binding You may not follow them. The choice is exclusive to the FCC, non-reviewable, irrational, made by two judges whose appointments were controlled by the government whose constitutional amendments the court was designed to protect from challenge.
