Supreme Court Justices Mansoor Ali Shah and Athar Minallah tendered their resignations, hours after President Asif Ali Zardari signed into law the controversial 27th Constitutional Amendment on Thursday.
Both judges had in separate letters asked Chief Justice of Pakistan Yahya Afridi to convene a full court meeting and judicial conference to hold a debate on the 27th Constitutional Amendment.
In his letter today to the President, Justice Shah attacked the amendment as “a grave attack on the Constitution of Pakistan”, which “dismantles the Supreme Court of Pakistan, subjugates the judiciary to executive control and strikes at the very heart of our constitutional democracy”.
“By fracturing the unity of the nation’s highest court, he has crippled judicial independence and integrity, setting the country back decades,” he wrote.
“As history attests, such disfigurement of the constitutional order is unsustainable and will eventually be reversed, but not before leaving deep institutional scars.”
The judge stated that he had the option of serving as a Supreme Court justice, which he said “undermines the very foundation of the institution one is sworn to protect,” or resigning.
“To remain would not only amount to silent acquiescence in the face of constitutional error, but would also mean continuing on a court whose constitutional voice has been silenced,” Justice Shah wrote.
“Unlike the 26th Amendment, when the Supreme Court of Pakistan still retained the jurisdiction to consider and answer constitutional questions, the present amendment has stripped this court of that fundamental and critical jurisdiction and authority.
“By serving on such a truncated and diminished court, I cannot protect the Constitution, nor can I even judicially examine the amendment that has disfigured it,” he said.
On the other hand, Justice Minallah stated in his letter that when he took the oath of office 11 years ago, he swore to defend not “a constitution” but “the Constitution.”
He wrote: “Before the passage of the 27th Amendment, I wrote to the Chief Justice of Pakistan, expressing concern about what the proposed features meant for our constitutional order.
“I do not need to reproduce the detailed content of that letter, but suffice it to say that, faced with a canvas of selective silence and inaction, those fears have now been realized,” he added.
Judge Minallah lamented that the Constitution he swore to defend “no longer exists,” adding that “he can think of no greater attack on his memory than to claim that, as new foundations are laid, they rest on something other than his grave.”
“What remains of him is a mere shadow; one that neither breathes his spirit nor speaks the words of the people to which he belongs,” the judge wrote.
“These robes we wear are more than mere adornments. They should serve as a reminder of the noble trust bestowed upon those fortunate enough to wear them,” the letter said. “Instead, throughout our history, they have too often been symbols of betrayal through silence and complicity alike.”
Justice Minallah is the eldest son of Nasrum Minallah, who was a commissioner during the 1960s and 1970s. He is the son-in-law of Justice Safdar Shah, who was part of the court that convicted and sentenced former Prime Minister Zulfikar Ali Bhutto, but wrote a dissenting note against the conviction, thereby facing the wrath of the then military dictator, General Ziaul Haq.
He joined Pakistan Customs and rose to senior positions, but later resigned and began practicing law. Following the dismissal of former Chief Justice Iftikhar Mohammad Chaudhry, he joined the lawyers’ movement for restoration of judiciary.
However, after Justice Chaudhry’s restoration, he became a critic of the judiciary due to excessive suo motu cases, leading to routine case processing.
In November 2022, then JCP Umar Ata Bandial swore in Justice Minallah, Justice Shahid Waheed and Justice Syed Hasan Azhar Rizvi as judges of the Supreme Court.
Earlier in the evening, sources said Sunrise that the President was expected to swear in the President of the Federal Constitutional Court (whose establishment would now take place after the promulgation of the 27th Amendment Bill) tomorrow at the Presidency.
Senate approval
The president’s approval of the legislation came hours after the Senate approved the bill for the amendment after voting on it a second time amid opposition outcry.
Announcing the result, Senate President Yousuf Raza Gilani said 64 votes had been cast in favor of the bill and four against. “Therefore, the motion is approved by the votes of not less than two-thirds of the total members of the Senate and, consequently, the bill is approved.”
The bill was initially introduced in the Senate for a vote on Monday and passed the same day. It was then sent to the AN, which approved it yesterday with some modifications. Therefore, the proposed legislation was reintroduced today in the Senate to consider the latest changes.
The 27th Amendment promised, on paper, to “streamline” governance through new constitutional courts, reviving executive magistrates and even an overhaul of how the military is commanded.
The core of the amendment is the creation of the Federal Constitutional Court (FCC), which would have senior judges from all provinces and hear constitutional matters, while ordinary courts would continue to hear all other matters.
Clause 23 of the amendment stated that the current CJP, Justice Yahya Afridi, would retain his position until the end of his term. Clause 56 of the amendment stated that once the tenure of the current CJP Afridi ends, the future CJP would be the most senior judge among the chairmen of the FCC and the high court.
Sources said Sunrise that the president was expected to swear in the FCC Chief Justice tomorrow at the Presidency.
More to follow
