Collage of images 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 Code of Conduct for Judges, warning that the changes undermine judicial independence, centralize authority and could be misused to silence dissenting judges.
In a detailed letter to the SJC, the two justices said: “We are going through difficult times, when democracy itself is under strain and constitutional institutions are being tested. At such times, a strong, fearless and independent judiciary is the last and only refuge of the people.”
“Any measure that restricts this independence or can be used to discipline, silence or control judges must be viewed with the greatest 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 allowed for “selective enforcement” to suppress distracting or dissenting voices.
They also noted that after the 26th Constitutional Amendment, such centralization of power makes the judiciary weaker, not stronger. Judicial independence cannot rest on the virtue or perceived courage of a single person; it must be distributed and not centralized, they stressed.
Both judges argued that the amendments to the code of conduct dilute independence, remove transparency and centralize control in a manner inconsistent with the Constitution and international standards.
They also challenged the assumption in Article XIX that the chief justice is “free from influence” and able to resist pressure once it is reported to that office.
“Equally troubling is the fanciful assumption underlying Article XIX: that the Chief Justice is immune from influence and institutionally capable of resisting pressure once it is reported to this office.”
“Experience has shown that when the institution itself is strained – particularly in the wake of the 26th Constitutional Amendment – such concentration of authority makes the system more fragile, not stronger,” they write.
Objection to inclusion of Justice Dogar
The two judges objected to the inclusion of Islamabad High Court Chief Justice Sarfraz Dogar as a member of the SJC, noting that an intra-judicial appeal regarding his transfer case is still pending.
They said the SJC meeting should be postponed until a final decision on the appeal.
“The authority of the SJC rests entirely on the public trust. With respect, Judge Dogar’s participation in Board meetings or proceedings while the above appeals remain pending may, even if unintentionally, cast doubt on or undermine the credibility of any decision rendered by the Board during this period,” they wrote.
“We are confident that Judge Dogar himself, recognizing the seriousness of this forum and the importance of public trust in his work, would consider it incumbent upon him to recuse himself from the Council pending appeals and a final decision on this matter. Such action would be consistent with the imperatives of transparency, constitutional propriety and institutional integrity.”
The two judges also strongly opposed the discussion of the Code of Conduct for Judges in the National Judicial Policy Development Committee (NJPMC), arguing that the body does not have the constitutional authority to consider such amendments.
“No member of the Council, including the President, has the authority to submit proposed amendments to any other body, much less the NJPMC, which has no constitutional jurisdiction in this regard,” they wrote.
They said that since the three chief justices participating in the SJC are also ex-officio members of the NJPMC and the SJC, their participation in approving the amendments to the NJPMC meant that “the majority of the SJC had effectively pre-decided the matter before it even came before the Council.”
“The two remaining members were thus excluded from the process and deprived of equal participation,” they said.
The justices argued that the proposed changes could not legally be considered by the current SJC. “At the very least, constitutional propriety required that the matter be taken up only by a Council reconstituted under Section 209, excluding those members who had participated in the deliberations of the NJPMC,” they said.
They said their objections were rejected by the majority, which then “adopted” the same amendments that had already been approved the day before.
Both justices 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.
“These proposals, if adopted, will restrict judicial freedom, transform an open and collegial institution into a closed and hierarchical one, and create avenues of control, both internal and external,” they said.
The letter concluded with a clear recommendation that no amendments to the Code of Conduct for Judges should be made until the decision on the 26th Constitutional Amendment is finalized.
