Islamabad:
In a letter of blistering, the senior judge of the Supreme Court Supreme Syed Mansoor Ali Shah accused the chief judge of Pakistan (CJP) Yahya Afridi of having undermined the independence of the Supreme Court, asking him to publicly answer six questions at the judicial conference on September 8.
In the seven -page letter dated September 4, judge Shah declared that it was “persistent and complete indifference” of the CJP which forced him to write to him as his previous letters and his written communications on a certain number of questions remained unanswered and not discreet.
“Not only once, I have received an answer or in writing or verbally. Such silence of the CJP to the highest judge of the court is not simply speech; this undermines the college traditions of this court and violates the institutional courtesy without which a constitutional court cannot operate,” he said.
Litting the questions, judge Shah asked the CJP to explain why he had never summoned the committee of three members trained under the law on practice and procedure, 2023 “to end the individual show in the training of benches”.
He said that the law required that all causes, questions, petitions, calls or opinions – other than those in the constitutional bench area under article 191a (3) – be placed before benches constituted by the “dad” committee of three members.
“However, since your function hypothesis in October 2024, no official meeting of the Papa Committee has been summoned. The training of benches and the lists of cause are published unilaterally, without any deliberation of the Committee.
“The lists are disseminated for signatures, expecting members to approve them blindly without discussion on the allowance or categorization of cases. As the main member of the committee, I did not have the opportunity to participate in work as the mandate by law.”
He said it was a direct violation of the law and raised serious concerns. He asked why judges judges are regularly assigned to benches of three members while senior judges are confined to benches of two members.
“Why are large-scale questions of national importance not to be fixed before the higher benches?
Judge Shah also asked the CJP Afridi to know why the “historic revision” of the rules of the Supreme Court, 1980 was approved by traffic rather than after discussion and deliberation during a complete justice meeting.
He declared that the SC rules are a constitutional document governing the functioning of the court and that their first revision in four decades was an event of historical importance, which required a complete justice meeting on the administrative side.
“Instead, you have chosen to approve the draft rules by circulation – a process adapted to routine issues so as not to reshape the constitutional framework of the Court.
“By avoiding deliberation, you have deprived the Court of collective wisdom and reduced legal dialogue. This course reflects a lack of collegiality and a preference for unilateral authority,” he said.
Judge Shah also asked the Afridor Judge to know why the policy of publication of dissident opinions adopted by requesting individual opinions on judges rather than an open deliberation at a complete justice meeting.
He said that the recent policy of publication of dissident opinions with majority judgment had been approved through a unique process of soliciting individual judges by the registrar.
“There is no legal or institutional basis for the collection of individual opinions on such critical questions without specific authorization from the complete court, and even then, only for questions of a procedural nature.
“It cannot be dealt with as a substitute for the complete deliberation of the court, and the responses to this letter cannot be used to formulate a policy in isolation.
He declared that a complete justice meeting is not simply a procedural formality, it is the basis of judicial collegiality. It allows all judges to meet, deliberate, exchange ideas and, through open dialogue, persuade or be persuaded.
“In such a forum, a judge can revise or refine his point of view after hearing his colleagues, or can help develop collective wisdom which is much more robust than isolated responses. This essential element of judicial democracy is entirely lost when opinions are sought in writing and in silos.”
The main judge also asked the CJP to tell the judicial conference to explain why a permanent general order (SGO) on leave was rendered which submitted judges to incompatible controls with judicial independence and the presidential order of 1997.
He said that for the first time in the history of the court, a GSO dictates that the judges are “in whole” available to the State – a language completely foreign to a constitutional court.
He said that judges are not regimening officers and that their independence is constitutionally anchored.
“Globally in the United Kingdom, the United States, Canada, Australia, South Africa, Germany, France, Singapore and India-civil servants. Leave is recognized as a right, not a favor.
He declared that the newly introduced requirement under the GSO according to which a judge of the Supreme Court, on leave or on vacation, was to disclose his residential speech and the coordinates are foreign to the practice of constitutional courts around the world.
“He borrows from the ethics of the bureaucracy of civil service and tries to transmit it in the judiciary, with deeply corrosive consequences. A judge of this court is not a supervised civil servant of the State but a constitutional actor whose independence is both decision -making and personal.
“To oblige the disclosure of the private residence of a judge is not the administration, it is surveillance. It reduces the dignity of the office to that of an employee monitored and masks an instrument of control in the costume of the procedure.
“No reputation constitutional court, the United States Supreme Court, the British Supreme Court or the Constitutional Court of South Africa has ever imposed such a condition,” he added.
He also asked the CJP to explain why the petitions contesting the 26th constitutional amendment were not listed for hearing before the original full court.
He said that the legitimacy of the CJP and court office is at stake in the pending petitions contesting the 26th amendment, but that the petitions remain unknown for almost a year, although they concern the independence of the court.
“They must be heard by the original full court, excluding judges raised after the amendment.
Until then, any initiative under your direction remains institutionally fragile, because its foundation is constitutionally suspicious. The real leadership does not reside in compliance management, but to ensure that the court exceeds suspicion as a intrepid guardian of the Constitution, “he said.
The judge also asked the high -level judge if he fed the independence of judges, or compliance to transform this court into a regimised force.
“These are institutional questions that strike at the heart of independence. While the new judicial year begins, and given the judicial conference, you have summoned yourself to review the reforms and fix the priorities, the nation and the judges of this court turn to their chief judge not for silence but for more clarity.
“I hope you use the judicial conference as a moment of institutional renewal by answering these questions and reaffirming the principles of collegiality and constitutional loyalty,” he added.
