Photo collage of Justice Mansoor Ali Shah and Justice Munib Akhtar. – SC website
ISLAMABAD:
Two members of the Supreme Judicial Council (SJC) – Justice Syed Mansoor Ali Shah and Justice Munib Akhtar – have raised strong objections to the approval of the amended Judges’ Code of Conduct, warning that the changes undermine judicial independence, centralize authority and can be misused to silence dissenting judges.
In a detailed letter to the SJC, the two judges said: “We are passing through trying times when democracy itself is facing strain and constitutional institutions are being tested. At such moments, a strong, fearless and independent judiciary is the last and only refuge of the people”.
“Any measure that curtails this independence or can weaponize the discipline, silencing or control of judges must be viewed with the utmost caution and strongly resisted,” they warned.
The judges warned that the new provisions were particularly dangerous because they could be used selectively against individual judges. They said the breadth and vagueness of the amendments allow for “selective application” to suppress inconvenient or dissenting voices.
They also noted that after the 26th constitutional amendment, such centralization of power makes the legal system more fragile, not stronger. Judicial independence cannot rest on the perceived virtue or courage of one person; it must be distributed, not centralized, they stressed.
Both judges maintained that the changes to the code of conduct dilute independence, suppress transparency and centralize control in a manner inconsistent with both the constitution and international standards.
They also challenged the assumption embedded in Article XIX that the Chief Justice is “immune to influence” and able to withstand pressure once reported to that office.
“Equally troubling is the fanciful assumption underlying Article XIX: that the chief justice is immune to influence and institutionally able to resist pressure once it is reported to that office.”
“Experience has shown that when the institution itself is under pressure—especially in the wake of the 26th Amendment—such a concentration of authority makes the system more fragile, not stronger,” they wrote.
Objection to Justice Dogar’s admission
Both judges objected to the inclusion of Islamabad High Court Chief Justice Sarfraz Dogar as an SJC member, noting that an internal appeal regarding his transfer case is still pending.
They stated that the SJC meeting should be adjourned pending a final decision on the complaint.
“The SJC’s authority rests solely on public trust and confidence. With respect, the participation of Justice Dogar in the meetings or proceedings of the Council while the aforementioned appeals remain pending may, even if unintentionally, cast doubt on or undermine the credibility of any decision made by the Council under such pendency,” they wrote.
“We have no doubt that Justice Dogar himself, recognizing the seriousness of this forum and the importance of public confidence in its work, would consider it incumbent upon himself to recuse himself from the council pending the appeal and a final decision thereon. Any such move would be consistent with the imperatives of transparency, constitutional propriety and institutional integrity.”
The two judges also strongly objected to the discussion of the Code of Judicial Conduct in the National Judicial Policy Making Committee (NJPMC), arguing that the body lacks constitutional authority to consider such changes.
“No member of the council, including the chairman, has the authority to place proposed amendments before any other body, least of all the NJPMC, which has no constitutional competence in this regard,” they wrote.
They said that since the three chief justices sitting on the SJC are also members of both the NJPMC and the SJC, their participation in approving the amendments at the NJPMC meant that “the majority of the SJC had effectively pre-judged the matter before it was even brought before the Council.”
“The two remaining members were thereby excluded from the process and deprived of equal participation,” they said.
The judges argued that the proposed changes could not legally be considered by the current SJC. “At the very least, constitutional decency required that the matter be taken up only by a reconstituted Council under Article 209, excluding those members who had participated in the NJPMC deliberations,” they said.
They said their objections were overruled by the majority, which proceeded to “adopt” the same amendments that had already been approved a day earlier.
The two judges warned that the proposed changes, including the amendment of Article V, the insertion of Article XIX and the incorporation of the 2003 SJC resolutions, raise serious concerns about the independence, autonomy and transparency of the judiciary.
“If adopted, these proposals will limit legal freedom, transform an open and collegial institution into a closed and hierarchical one and create opportunities for control – both internal and external,” they said.
The letter concluded with a clear recommendation that no change should be made to the Judges’ Code of Conduct before the decision on the 26th Amendment to the Constitution is finally determined.
