Justices Mansoor Ali Shah and Munib Akhtar of the Supreme Court have asserted that the Judicial Commission of Pakistan (JCP) is not the correct forum to debate the formation of a full court to hear petitions challenging the 26th Constitutional Amendment. In a detailed letter, the two senior judges clarified why a full court was not convened to address the issue of the 26th Amendment.
“We informally made strenuous efforts that a Full Court meeting be called, either by way of the Court sitting as such on the judicial side or at least convening on the administrative side to hear petitions challenging the 26th Amendment,” the letter stated. The judges noted that at a time when no issue was more crucial for the Supreme Court, the necessary consensus—which could only be achieved through a Full Court Meeting consistent with legal practice—was not reached.
This failure resulted in the apex court being unable to develop an institutional response. The letter explained, “The process could not be substituted by the CJP informally meeting the judges individually, especially when the other members of the Committee (i.e., the undersigned) did not (and were not invited to) participate in this exercise.” The judges stressed that what was needed was collective deliberation and decision-making, which regrettably did not happen. They added that it was vital to immediately build a consensus by calling a Full Court meeting to provide the much-needed institutional response to a matter of such importance.
“That response could only come from the judges themselves, by their convening in open Court or meeting in full conclave,” they said, warning that the dire consequences of this failure continue to echo throughout the Supreme Court, the entire judiciary, and the constitutional framework. The judges further mentioned that the matter then moved to a more formal phase when a Committee meeting was held. The majority in attendance made decisions that were recorded in the minutes of October 31, 2024, which constituted a legally binding decision that should not have been ignored.
Similarly, when the petitions were not scheduled for November 4, 2024, as directed by the Committee, they wrote another letter in protest and to ensure compliance, but this letter was also disregarded. “Once again, a binding decision of the Committee was not given effect,” the letter stated. They also noted they had carefully reviewed the two notes from the Chief Justice, which have now been made public.
The judges argued that the entire matter would have been handled by the Full Court had it been convened in a timely manner, as required by law. Referring to the JCP meeting, they pointed out that neither of the two notes written by the Chief Justice was sent to the other Committee members. Instead, one note was read aloud at the JCP meeting on November 5, 2024. The judges maintained that the JCP was not the appropriate forum for such a matter, and the Committee’s October 31, 2024, decision could not be forwarded to a Constitutional Bench or its head because such a body did not exist on those dates.
“Nor did they have any authority or jurisdiction over, or could by any act or omission defeat or frustrate, a decision of the Committee taken in accordance with law,” the letter asserted. “We reiterate that on both of the said dates the only legally binding decision in the field was the Committee’s decision of 31.10.2024, which ought to have been given effect in letter and spirit but regrettably, this was never done,” the judges maintained.
The letter also argued that individually seeking opinions from judges was against legal norms and judicial practice, and such opinions hold no legal weight. “If at all the Judges were to be consulted, the proper (indeed only) course was to convene a Full Court meeting on the administrative side where judges could deliberate and decide together,” the letter stated. The two judges added that a rushed, private canvassing of judges’ views had no legal basis or institutional legitimacy. They also noted they were not part of these discussions and were unaware of what was being communicated to the other judges.
Justice Shah and Justice Akhtar further said they had pointed out that placing the matter before a Full Court on the judicial side would allow the Supreme Court to decide whether the challenges to the 26th Amendment should be heard as such or be placed before a new Constitutional Bench. However, the Chief Justice did not agree to this.
