Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
With the government pushing to pass the 27th Constitutional Amendment Bill in the National Assembly today (Tuesday), alarm bells are ringing across the legal community as letters poured into the Supreme Court on Monday calling for a timely and decisive response.
Letters from sitting and retired judges, lawyers and former paralegals urged Chief Justice of Pakistan (CJP) Yahya Afridi to convene a full court session to map out a comprehensive response before the curtain falls on the independence of the judiciary.
Chief Justice Justice Syed Mansoor Ali Shah has written 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 has also been sent to all SC judges, Justice Shah also urged the CJP to convene a full court session, or preferably a joint convention of all the judges of the Constitutional Court, to discuss the implications of the proposed amendment.
Justice Shah stated that the proposed Federal Constitutional Court “does not spring from any genuine reform agenda; rather, it is a political tool to weaken and control the judiciary”.
He noted that its judges would be appointed without constitutional parameters, as is the case with the Constitution Bench.
“Such an arrangement confers decisive power on the executive and invites manipulation of the judicial process. A court born of executive will cannot be independent,” he wrote.
“A controlled constitutional court may serve transient political interests, but it will permanently harm the republic. The independence of the judiciary is not a privilege of judges – it is the protection of the people against arbitrary power. This moment calls for you, as the head of the institution, to sound the alarm before the independence of the judiciary is irrevocably lost.”
Meanwhile, Justice Athar Minallah has written 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 the new court. “The most fundamental question to be asked is: Why a constitutional court at all? What constitutional vacuum does it seek to fill? The Supreme Court of Pakistan, as it stands – especially in its pre-Twenty-sixth Amendment form – already exercises extensive constitutional, civil and criminal jurisdiction under Articles 1584, 1818, 1818 and 1818 of the Constitution,” it wrote.
He explained that the court’s internal committee system assigns benches and marks cases, ensuring transparency and institutional fairness. “This structure has served the Republic since independence – nearly seventy-eight years – without compromising the court’s role as the final arbiter of justice and protector of fundamental rights,” Justice Shah said.
He rejected comparisons with civil justice systems such as Germany, Italy and Spain, noting that their constitutional courts were born in response to totalitarian regimes and lacked traditions of judicial review.
“However, Pakistan’s system evolved from the common law tradition of the United Kingdom, where the Supreme Court acts as the sole supreme court for all matters – constitutional, civil and criminal alike,” he wrote.
Justice Shah argued that there was “no structural void or historical necessity to justify the creation of a federal constitutional court in addition to the Supreme Court”.
He also questioned whether judges from the constitutional courts – the SC, the Federal Sharia Court and the High Courts – had been invited to deliberate on the proposed amendment. “If not, the process is stripped of constitutional decency 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 very edifice they were meant to guard,” he warned.
The judge also asked why the government went ahead 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 put forward while the validity of the previous one – already challenged – remains unsettled?” he asked.
He pointed out that the 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 goes to the very legitimacy of the current regime and to the current leadership of the current Supreme Court. Until these questions are finally settled, any further attempt to change the judicial architecture risks camouflaging unresolved constitutional deficiencies and casting further doubt on the credibility of both the constitutional process and the amendment process.”
He cited data from the Law and Justice Commission’s 2023 Judicial Statistics to counter the argument that the new court would reduce case backlogs, noting that “nearly 82 percent of 2.26 million pending cases were in 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 endorsed by several retired judges and senior lawyers described the proposed change as “the biggest 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 hearing and warned that failure to do so would mean accepting “the demise of the Supreme Court of Pakistan as the highest court in Pakistan”.
“If CJP Afridi does not convene the full hearing, then he should admit in a written reply that he is now reconciled to being the last Chief Justice of Pakistan,” it said. “At least by this concession from you, we would no longer have any expectation from your Lordship to be a defender of the Supreme Court of Pakistan.”
In another development, 38 former SC advocates also wrote to CJP Afridi urging him to convene a full bench to issue an institutional response against the amendment.
They told him that “his actions today will dictate whether he will be known as the Chief Justice who stood as a bulwark against the destruction of the Supreme Court or as one who buried the Supreme Court”.
Advocate Maha Raja Tareen, commenting on CJP Afridi’s role, said the beneficiaries are always bound to defend “the flimsy foundation of a weak system”. Therefore, to expect the last honorable CJP to make history is “a fallacy far removed from reality”, one that will never materialize.
