ISLAMABAD:
Former Supreme Court judge Mansoor Ali Shah has raised serious questions over what he described as outgoing Chief Justice of Pakistan (CJP) Yahya Afridi’s failure to uphold judicial independence, arguing that a moment demanding institutional resistance was instead met with silence and accommodation.
In his recent speech at the Schell Center for International Human Rights, Yale Law School, 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 lamented that the Chief Justice accepted the amendment and negotiated only for the preservation of his own position and title. “The silence of my colleagues was a verdict in itself. No collective declaration. No refusal. No act of professional solidarity.”
The former judge also highlighted 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 had refused to implement the judgment and had decided to prevent similar rulings from being issued in the future.
Shah said 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 it also ended the appointment of the chief justice based on seniority, empowering a parliamentary committee to choose from the three most senior judges.
“No criteria were prescribed. No reasons were required.”
The panel of three changes what a judge needs to be to become a CJ. Under the seniority convention, a judge had no incentive to cultivate favor with the executive; the situation was determined by an objective rule. The panel converts the position of chief judge into a competition.
The committee will favor the candidate least likely to cause institutional discomfort, whose record suggests accommodation rather than independence, whose jurisprudence demonstrates cooperation rather than resistance. “This creates a retrospective incentive that shapes the behavior of judges years before the time of their appointment.”
Despite these concerns, Justice Shah said he initially chose to stay within the system.
However, Justice Shah said he chose to stay because there remained hope that the SC, as a full court, would rise to consider the amendment and reclaim its constitutional role. “I had confidence that institutional reason and constitutional morality would prevail.”
He said the 27th Amendment, adopted 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 role.
Shah says 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 its constitutional jurisdiction and reduced to an appellate shell. The amendment introduces the power to transfer High Court judges from one province to another without their consent, a mechanism aimed at purging independent jurists.
He then explained the implications of the amendment.
“The 27th Amendment did not simply strip the Supreme Court of its constitutional jurisdiction. It created above it a new federal Constitutional Court, composed of judges selected through an executive-controlled nomination process, and gave that court the power to reject seventy-eight years of Supreme Court jurisprudence as merely persuasive. The FCC has already exercised this power. In its earliest decisions, it stated that the precedents of the Supreme Court – the body of constitutional decisions accumulated since independence until today – do not bind it.
