Letters flood SC urging response | The Express Tribune

ISLAMABAD:

With the government pushing to pass the 27th Constitutional Amendment Bill in the National Assembly today (Tuesday), alarm bells are ringing across the judicial community as letters poured into the Supreme Court on Monday, urging a timely and decisive response.

Letters from sitting and retired judges, lawyers, and former law clerks called on Chief Justice of Pakistan (CJP) Yahya Afridi to convene a full court meeting to chart a unified response before the curtain falls on the judiciary’s independence.

Senior-most judge Justice Syed Mansoor Ali Shah has written to CJP Afridi, urging him to engage the executive and make clear that no constitutional amendment should be passed without prior consultation with judges of all constitutional courts.

In his letter, a copy of which has also been 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 stated that the proposed Federal Constitutional Court “does not arise from any genuine reform agenda; it is, rather, a political device to weaken and control the judiciary”.

He noted that its judges would be appointed without constitutional parameters, as is the case with the Constitutional Bench.

“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 transient political interests, but it will permanently damage the Republic. The independence of the judiciary is not a privilege of judges—it is the people’s protection against arbitrary power. This moment demands that you, as Head of the Institution, raise the alarm before the independence of the judiciary is irretrievably lost.”

Meanwhile, Justice Athar Minallah has written separately 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 need for the new court. “The most fundamental question that must be asked is: Why a Constitutional Court at all? What constitutional vacuum does it seek to fill? The Supreme Court of Pakistan, as it stands—particularly in its pre-Twenty-Sixth Amendment form—already exercises comprehensive 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 benches and marks cases, ensuring transparency and institutional fairness. “This structure has served the Republic since independence—nearly seventy-eight years—without compromising the Court’s role as the final arbiter of law and protector of fundamental rights,” Justice Shah said.

He rejected comparisons with civil-law systems such as Germany, Italy, and Spain, noting that their constitutional courts were born in response to totalitarian regimes and lacked traditions of judicial review.

“Pakistan’s system, however, evolved from the common-law tradition of the United Kingdom, where the Supreme Court serves as the single apex court for all matters—constitutional, civil, and criminal alike,” he wrote.

Justice Shah argued that there was “no structural void or historical necessity to justify the creation of a Federal Constitutional Court over and above the Supreme Court”.

He also questioned whether judges of the constitutional courts—the SC, the Federal Shariat Court and the high courts—had been invited to deliberate on the proposed amendment. “If not, the process stands stripped of constitutional propriety and democratic legitimacy,” he wrote.

“History does not easily forgive such abdications of duty; it records them as constitutional failures of leadership and moments when silence within institutions weakened the very edifice they were meant to guard,” he cautioned.

The judge also asked why the government was proceeding with the 27th Amendment while challenges to the 26th Amendment were still pending before the court. “Another question arises: can a new constitutional amendment be advanced while the validity of the previous one—already under challenge—remains undecided?” he asked.

He pointed out that the petitions challenging the 26th Amendment, which was itself criticised for striking at the heart of judicial independence, are still pending.

“The challenge to the Twenty-Sixth Amendment goes to the very legitimacy of the current regime and to the current leadership of the present Supreme Court. Until those questions are conclusively settled, any further attempt to alter the judicial architecture risks camouflaging unresolved constitutional infirmities and casting further doubt on the credibility of both the amendment process and the constitutional order.”

He cited data from the Law and Justice Commission’s 2023 Judicial Statistics to counter the argument that the new court would reduce case backlogs, noting that “nearly 82 per cent of 2.26 million pending cases were before the district judiciary, while the Supreme Court accounted for less than 3 per cent of the total.”

Meanwhile, a separate letter penned by Advocate Faisal Siddiqi and endorsed by several retired judges and senior lawyers described the proposed amendment as “the biggest and most radical restructuring of the Supreme Court of Pakistan since the Government of India Act, 1935”.

The letter also urged 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 in Pakistan”.

“If CJP Afridi doesn’t convene the full court meeting then he should admit in a written response that he is now reconciled to be the last Chief Justice of Pakistan,” it stated. “At least by this admission by you, we would no longer have any kind of expectation from your Lordship to be a defender of the Supreme Court of Pakistan.”

In another development, 38 former law clerks of the SC also wrote to CJP Afridi, urging him to call a full court meeting to issue an institutional response against the amendment.

They told him that “his actions today will dictate whether he will be known as the chief justice who stood as a bulwark against the Supreme Court’s destruction or as one who buried the Supreme Court”.

Advocate Maha Raja Tareen, commenting on CJP Afridi’s role, said beneficiaries are always bound to defend the “flimsy foundations of a feeble system”. Therefore, expecting the last honourable CJP to create history “is a fallacy far removed from reality”, one that will never be realised.