ISLAMABAD:
A letter from Supreme Court judges Justice Mansoor Ali Shah and Justice Munib Akhtar surfaced on Wednesday, reigniting debate over the judiciary’s handling of the 26th Constitutional Amendment and whether it should be taken up by a constitutional bench or the full court.
In the detailed letter, the two senior judges questioned Chief Justice Yahya Afridi’s decision to disregard the procedure committee’s majority view in favour of constituting a full court.
Justice Shah and Justice Akhtar recalled that as members of the committee formed under the Supreme Court (Practice and Procedure) Act, 2023, they had on October 31, 2024, decided to constitute a full court to hear petitions challenging the 26th Constitutional Amendment.
“We had decided to constitute a full court,” the letter stated. However, the case was never scheduled. When the decision was not implemented, the judges followed up with a letter on November 4, but even that failed to bring compliance, it added.
They emphasised that the notes later penned by the chief justice — dated October 31 and November 5 — were not shared with them. “We are forced to write now because the minutes of meetings have been uploaded after nearly ten months, and the two notes of the Chief Justice were not issued or provided to the undersigned,” the judges wrote. Instead, one of those notes was read out during a meeting of the Judicial Commission of Pakistan (JCP), a forum which, they argued, had no jurisdiction in the matter. “The Judicial Commission was not the forum for such a matter, nor could the Committee’s decision of 31.10.2024 be forwarded to any constitutional bench or committee thereof, for the simple reason that they did not exist on that date,” they stressed.
The two judges took issue with the sudden disclosure of proceedings, questioning why minutes that were previously restricted had now been placed in the public domain. They recalled that in November 2024, the committee had by majority decided that minutes would have “restricted circulation” and not be uploaded online.
“The obvious question that arises is as to why have the minutes now been publicly disclosed despite the interdict placed by the Committee itself? This may well become clear once the judicial year begins in September and the Constitutional Benches start functioning again,” the letter said.
The letter sheds light on events of October 31, when both judges met the Chief Justice in his chambers. They pressed for a full court to hear the petitions, citing a crisis of confidence. “We underlined that the very legitimacy of the Supreme Court, as well as the office of the Chief Justice, was under question, and that only a transparent and collective adjudication — by the Full Court could restore public confidence,” the letter notes.
The chief justice, however, resisted, maintaining that such cases could only be heard by newly-created constitutional benches under the 26th Amendment itself. The judges objected that referring the challenge to a bench constituted under the very amendment being contested would gravely undermine the court’s credibility.
Although the Chief Justice sought an hour to reflect, he later informed the judges in Justice Akhtar’s chambers that he had instead sought views individually from other judges. The two judges objected sharply.
“The Chief Justice’s act of seeking opinions individually was contrary to law and judicial practice, and opinions obtained in this manner had no legal standing,” they stated. According to them, consensus could only be achieved through a proper committee or full court meeting.
Later the same day, a formal committee meeting was convened, the letter said. After discussion, the judges voted in favour of constituting a full court, while the chief justice dissented. The majority decision, recorded in the minutes, was that petitions against the 26th Amendment would be fixed for hearing on November 4 before the full court.
But the decision was never carried out. “The decision was not implemented. The petitions were not fixed before the Full Court on 4.11.2024,” the letter recorded. When the judges wrote again to the chief justice pointing out non-compliance, no response was received, it said.
Instead, the chief justice issued a note and moved the matter to the Judicial Commission, which “approved” the constitution of a seven-member bench. The judges criticised this step as an attempt to circumvent the committee’s binding majority decision.
“Once again, a binding decision of the Committee was not given effect. The notes of the Chief Justice do not provide any reason or justification for non-compliance,” they wrote. According to the judges, this failure left the court without a collective institutional response.
“At a time when no question was more important for the Court, it was necessary to immediately create consensus by calling a Full Court meeting That response could only come from the Judges themselves, by convening in open Court or meeting in full conclave. The dire consequences of that not happening continue to reverberate in the Court, the judiciary, and the entire constitutional framework,” the letter stated.
They further asserted that “the challenges to the 26th Amendment continue to remain pending and a golden opportunity to decide them at the earliest instance before the Full Court — has been lost, perhaps irretrievably.”
Now that the minutes and related records have been uploaded, the judges have demanded that their explanatory letter also be placed alongside on the Supreme Court website. “If at all it is now for History to judge then, at least, let the record be complete,” they concluded.
The judges were categorical: “It was mandatory to constitute a full court on the 26th Amendment, and no one could override it. The Chief Justice’s notes undermined the majority decision.”
The refusal to constitute a full court has invited speculations and misgivings as to why the beneficiary of the 26th constitutional amendment are reluctant to examine as if the amendment is undermining independence of the judiciary.
Former Sindh High Court Bar Association president Salahuddin Ahmed believes that CJP Afridi’s refusal to abide by the Practice & Procedure Committee’s decision to list the petitions challenging the 26th Amendment was unlawful.
“He may have been of the genuine view that such petitions should be heard by the Constitutional Bench (whenever it was formed) rather than the Full Court. But the majority of the Committee felt otherwise. So the lawful thing to do would be to place the matter before the Full Court & if the majority felt that his view was correct & the petitions should not be heard till the CB was formed; they would have passed a formal order saying so. Equally, if the majority of the Full Court felt the view of Justice Syed Mansoor Ali Shah & Justice Munib Akhtar was correct, they would have explained the reasons why in their order.”
Salahuddin Ahmed says that CJP Afridi’s apprehension that this step would undermine judicial collegiality, with respect, does not appear logical. Firstly, collegiality cannot be prioritised over judicial responsibilities. Secondly, the now 1-year long refusal to let challenges to the 26th Amendment be heard — has clearly undermined (not enhanced) comity within the judiciary & its reputation for independence”
Finally, ex-SHCBA president states that this failure has led to needless speculation and misgivings that perhaps the reluctance to list the challenges to the 26th Amendments was the fear that some of the 9 judges who reportedly agreed the petitions should not be listed might perhaps change their mind after arguments in open court or in a formal meeting, he adds.
Advocate Rida Hosain says that CJP Yahya Afridi’s reluctance to place the petitions challenging the 26th Amendment before a full court is inexplicable.
“The CJP’s assertion that he went around informally asking judges their view is frankly absurd. Questions which should have been determined in an open courtroom are being decided behind closed doors. As it remains, the CJP has violated a binding decision of the Committee and eroded public confidence in the judiciary. The CJP holds office by virtue of the 26th Amendment. As long as he delays the challenge, his appointment remains the subject of dispute”, she adds.
Rida Hosain further states that Justices Mansoor Ali Shah and Munib Akhtar have said that if it is for history to judge then let the record be complete. The 26th Amendment has enabled the court martial of civilians, the capture of the Islamabad High Court, and the reserved seats reversal. While these disastrous decisions were taken, the constitutional validity of the 26th Amendment remained disputed. If the 26th Amendment is ultimately struck down, the decisions taken by the Constitutional Bench will come under question. This is not a question for history to judge. The only way forward is for the petitions to be put before the Full Court (as it existed prior to the passage of the 26th Amendment)”, she further states.
Mirza Moiz Baig advocate said that the letter engenders serious concerns about the Chief Justice’s role. While CJ Afridi has enjoyed an unimpeachable reputation, his recalcitrance to hear the petitions challenging the 26th Amendment erode the public’s confidence in the Supreme Court and in the office of the Chief Justice. Moreover, with the Government subsequently amending the Practice and Procedure Act to deliver a majority to the CJ, concerns about the Apex Court’s impartiality only aggravate, he adds.
Atira Ikram advocate lamented that it is unfortunate that such critical constitutional issues, such as the 26th amendment have also become victim to the division and discourse that has been prevalent in our judiciary. “It would have been far more beneficial in restoring the public’s confidence, if judges relegated difference of opinion to their judgments, and not play out their personal vendettas on public stages, normally reserved for politicians”, she adds.
