Islamabad:
A letter from the Supreme Court Judge Justice Mansoor Ali Shah and Justice Munib Akhtar appeared on Wednesday, repeating the debate on the judiciary’s handling of the 26th constitutional change and whether it should be taken up by a constitutional bench or the full court.
In the detailed letter, the two senior judges questioned Chief Justice Yahya Afridi’s decision to disregard the majority view of the procedure in favor of constituting a full court.
Justice Shah and Justice Akhtar remembered that when members of the committee were set up under the Supreme Court (practice and procedure), 2023, on October 31, 2024, they had decided to constitute a full court to hear petitions challenged the 26th constitutional amendment.
“We had decided to form a full court,” the letter said. However, the case was never planned. When the decision was not implemented, the judges followed up with a letter on November 4, but even it failed to bring compliance, it added.
They emphasized that the notes that were later bound by Chief Justice – dated October 31 and November 5 – were not shared with them. “We are forced to write now because the protocol of meetings has been uploaded after almost ten months and the two notes from Chief Justice were not issued or delivered to the undersigned,” the judges wrote. Instead, one of these notes was read during a meeting of the Legal Commission in Pakistan (JCP), a forum they claimed had no jurisdiction in the case. “The judicial commission was not the forum for such a case, and the committee’s decision on 31.10.2024 is forwarded to any constitutional bench or committee thereof for the simple reason that they did not exist on this date,” they emphasized.
The two judges questioned the sudden passing of the procedure and asked why there had now been limited minutes that were previously limited in public space. They recalled that in November 2024 the committee had decided that minutes would have “limited circulation” and not uploaded online.
“The obvious question that arises is why are the minutes that have now been published despite the interdic that is placed by the committee itself? This may well become clear when the judicial year begins in September and the constitutional benches begin to work again,” the letter says.
The letter sheds light on events on October 31 when both judges met Chief Justice in his chambers. They pressed on for a full court to hear the petitions with reference to a conflict of confidence. “We emphasized that much legitimacy of the Supreme Court as well as Chief Justice’s office was under doubt and that only a transparent and collective judgment – of the full court could restore public confidence,” notes the letter.
However, Chief Justice opposed and maintained that such cases could only be heard by newly created constitutional benches during the 26th change. The judges opposed that reference to the challenge of a bench that was composed during the change itself would seriously undermine the credibility of the court.
Although Chief Justice sought an hour to reflect, he later stated the judges of Justice Akhtar’s chambers that he had instead sought views individually from other judges. The two judges opposed sharply.
“Chief Justice’s act of seeking statements individually was contrary to law and case law, and statements obtained in this way had no legal status,” they said. According to them, consensus could only be obtained through a proper committee or a full hearing.
Later that day, a formal committee meeting was called, the letter said. After the discussion, the judges voted to pose a full court while Chief Justice disseminated. The majority decision, which was registered in the protocol, was that petitions against the 26th change would be laid down for consultation on November 4 before the full court.
But the decision was never implemented. “The decision was not made. When the judges wrote again to Chief Justice, who pointed out non -compliance, no answer was received, it says.
Instead, Chief Justice issued a note and moved the matter to the legal commission that “approved” the constitution of a seven-member bench. The judges criticized this step as an attempt to bypass the committee’s binding majority decision.
“Once again, a binding decision from the committee did not take effect. The notes from Chief Justice do not give any reason or justification for non -compliance,” they wrote. According to the judges, this failure left the court without a collective institutional reaction.
“At a time when no question was more important to court, it was necessary to immediately establish consensus by calling a full hearing … that the answer could only come from the judges themselves by convening in open court or meeting in full conclave. The major consequences of what is not happening continues to restore in court, the court, the court and the whole constitutional framework,” the letter.
They also claimed that “the challenges of the 26th amendment remain pending, and a golden opportunity to decide the earliest cases before the full court – have been lost, perhaps irrevocable.”
Now that the protocols and related items have been uploaded, the judges have demanded that their explanatory letter be placed along with the Supreme Court website. “If it is at all for the story to judge then, at least, let the record be complete,” they concluded.
The judges were categorical: “It was mandatory to constitute a full court in the 26th amendment and no one could override it. Chief Justice’s notes undermined the majority decision.”
The rejection of constituting a full court has invited speculation and concern as to why the recipient of the 26th constitutional change is reluctant to investigate as if the change is undermining the judiciary of the judiciary.
Former Sindh High Court wore the Association President Salahuddin Ahmed believes that CJP Afridi’s refusal to comply with the decision of the Practice and Procedure Committee to indicate the petitions that challenged the 26th change was illegal.
“He may have been of the real view that such petitions should be heard by the constitutional bench (when formed) rather than the full court. But the majority of the committee felt otherwise. So the legal thing to do would be to place the case before the full court, and if the majority believed that his point of view was correct and the petition should not be heard that CB was formed; That it was correct if the majority of the full court seemed that the sight after being formed;
Salahuddin Ahmed says that CJP Afridi’s fear that this step would undermine the collegiality of prime, with respect, does not seem logical. First, collegiality cannot be prioritized rather than legal responsibility. Secondly, the now 1-year long rejection of letting challenges to the 26th amendment have been heard-have clearly undermined (not improved) Comity in the judiciary and its reputation of independence “
Finally, the ex-shcba president says this failure has led to unnecessary speculation and concerns that the reluctance to indicate the challenges of the 26. Amendments were fear that some of the 9 judges who reportedly agreed that the petitions should not be listed may change their opinion in open court or in a formal meeting, he adds.
Attorney Rida Hosain says CJP Yahya Afridi’s reluctance to place the petitions challenging the 26th amendment to a full court is inexplicable.
“CJP’s claim that he was going around informally asking the judges that their point of view is honestly absurd.
Rida Hosain also says that Justices Mansoor Ali Shah and Munib Akhtar have said that if it is for the story to judge, then the record will be complete. The 26th change has enabled the court’s martial arts, the capture of Islamabad High Court and the reserved seats turning. While these disastrous decisions were made, the 26th amendment remained on the 26th change. If the 26th amendment is ultimately turned down, the decisions made by the constitutional bench will be asked under doubt. This is not a question for the story to judge. The only way forward is that the petitions must be set before the full court (as it existed before the adoption of the 26th amendment), “she says further.
Mirza Moiz Baig Advocate said the letter causes serious concerns about the role of Chief Justice. While CJ Afridi has enjoyed an unimpaired reputation, his return to hear the petitions challenge the 26th change of public confidence in the Supreme Court and in the Office of Chief Justice. Furthermore, with the government that subsequently changes the practice and procedure to deliver a majority to CJ, the concerns of the point of peak are only worsened, he adds.
Atira Ikram Advocate complained that it is unfortunate that such critical constitutional issues, such as the 26th change, have also fallen victim to the division and discourse that has been widespread in our judiciary. “It would have been far more advantageous to restore public confidence if the judges refer to the difference in meaning to their judgments and do not play their personal vendettas at public stages, usually reserved for politicians,” she adds.
