Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
As the government strives to pass the 27th Constitutional Amendment Bill in the National Assembly today (Tuesday), alarm bells are ringing in the legal community as letters flood into the Supreme Court on Monday, calling for a swift and decisive response.
Letters from serving and retired judges, lawyers and former jurists have called on Chief Justice of Pakistan (CJP) Yahya Afridi to convene a full court meeting to chart out a unified response before the curtain falls on the independence of the judiciary.
Justice Syed Mansoor Ali Shah, the top judge, wrote to CJP Afridi, urging him to involve 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 was also sent to all SC judges, Justice Shah also called on the CJP to convene a full court meeting, or preferably a joint convention of all Constitutional Court judges, to deliberate on the implications of the proposed amendment.
Justice Shah said the proposed Federal Constitutional Court “does not arise from a genuine reform agenda; rather, it is a political device aimed at weakening and controlling the judiciary.”
He stressed that its judges would be appointed without constitutional parameters, as is the case for the Constitutional Chamber.
“Such an arrangement vests decisive power in 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 fleeting 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 demands that you, as head of the institution, sound the alarm before the independence of the judiciary is irretrievably lost.”
Meanwhile, Justice Athar Minallah has separately written 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 necessity of the new court. “The most fundamental question that needs to be asked is: why a Constitutional Court? What constitutional void does it seek to fill? The Supreme Court of Pakistan, as it exists, particularly in its pre-Twenty-Sixth Amendment form, already exercises full constitutional, civil and criminal jurisdiction under Articles 184, 185, 186 and 187 of the Constitution,” he wrote.
He explained that the court’s internal committee system allocates seats and scores cases, ensuring transparency and institutional fairness. “This structure has served the Republic since independence – almost seventy-eight years – without compromising the role of the Court as the final arbiter of law and protector of fundamental rights,” Justice Shah said.
He rejected comparisons with civil law systems like those of Germany, Italy and Spain, pointing out that their constitutional courts arose in response to totalitarian regimes and lacked traditions of judicial review.
“The Pakistani system, however, evolved from the common law tradition of the United Kingdom, where the Supreme Court serves as the single supreme court for all matters – constitutional, civil and criminal,” he wrote.
Justice Shah held 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 of the constitutional courts – the Supreme Court, the Federal Sharia Court and the high courts – had been invited to deliberate on the proposed amendment. “Otherwise, the process will be deprived of any constitutional character and any democratic legitimacy,” he wrote.
“History does not easily forgive such abdications; it records them as constitutional failures of leadership and moments when silence within institutions weakened the very edifice they were meant to protect,” he warned.
The judge also questioned why the government was moving forward with the 27th Amendment when challenges to the 26th Amendment were still pending in court. “Another question arises: can we propose a new constitutional amendment while the validity of the previous one, already contested, remains undecided?” he asked.
He noted that petitions challenging the 26th Amendment, itself criticized for its attacks on the heart of judicial independence, are still pending.
“The challenge to the Twenty-Sixth Amendment concerns the very legitimacy of the current regime and the current direction of the current Supreme Court. Until these issues are definitively resolved, any further attempt to alter the judicial architecture risks camouflaging unresolved constitutional infirmities and casting further doubt on the credibility of the amendment process and the constitutional order.”
He cited data from the Law and Justice Commission’s 2023 court statistics to counter the argument that the new court would reduce case backlogs, noting that “nearly 82 percent of the 2.26 million pending cases were before 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 describes the proposed amendment as “the most significant and radical restructuring of the Supreme Court of Pakistan since the Government of India Act, 1935”.
The letter also urges CJP Afridi to convene a full court meeting, warning that failure to do so would mean accepting “the demise of the Supreme Court of Pakistan as the highest court of Pakistan”.
“If CJP Afridi does not convene the full court meeting, then he will have to admit in a written reply that he is now reconciled to become the last Chief Justice of Pakistan,” he said. “At least with this admission of yours, we would no longer have any sort of expectation from your Lordship to be an advocate of the Supreme Court of Pakistan.”
In another development, 38 former SC jurists have also written to CJP Afridi, urging him to convene a full court meeting to issue an institutional response against the amendment.
They told him that “his actions today will determine whether he will be known as the chief justice who stood as a bulwark against the destruction of the Supreme Court or as the one who buried the Supreme Court.”
Lawyer Maha Raja Tareen, commenting on the role of CJP Afridi, said beneficiaries are still required to defend the “fragile foundations of a weak system”. Therefore, expecting the latest honorable CJP to create history “is an error far removed from reality”, an error that will never come true.
