Justice Shah warns against extending CB tenure
Senior puisne judge of the Supreme Court Justice Syed Mansoor Ali Shah has cautioned that the extension of the Constitutional Bench (CB) without resolving the core legal challenge surrounding it could further undermine the top court's legitimacy and deepen the ongoing institutional crisis.
"The Commission must wait till the constitutionality of the 26th Constitutional Amendment is decided by this Court before addressing matters that flow directly from it. Proceeding with extensions or re-appointments to a Constitutional Bench whose very legal foundation is under serious constitutional challenge further deepens the institutional crisis and weakens the Court's legitimacy," Justice Shah wrote in a two-page letter addressed to the Secretary of the Judicial Commission of Pakistan (JCP).
A copy of the letter was also shared with all JCP members. However, the commission, by majority vote, disregarded Justice Shah's concerns and extended the tenure of the Constitutional Bench until November 30.
Justice Shah noted that his office had verbally informed the Secretary JCP on June 12 that he would not be available in Pakistan to attend the meeting scheduled for June 19.
"One would have reasonably expected that due to non-availability of one of its Members, the meeting would be deferred — particularly in keeping with past practice, where meetings have been deferred due to the unavailability of Members representing the Executive. Additionally, the meeting falls in the summer vacations announced by the Court.
However, it appears that the meeting is continuing as scheduled — perhaps due to the judiciary's minority position in the Commission," the letter read.
Justice Shah also requested that his written submissions be included in the official minutes of the JCP meeting, as he would be unable to attend, even virtually.
He stressed that the commission must recognise how the ongoing delay in resolving the constitutionality of the 26th Amendment is eroding the Court's credibility and shaking public confidence in its impartiality.
"It is both surprising and regrettable that rather than first addressing the legitimacy of the 26th Amendment, the Commission is rather insensitively prioritising the matter of judicial extensions — an act which, in substance, continues the disputed scheme introduced by that very amendment," the letter states.
Justice Shah also warned against the growing influence of the Executive over the Commission.
"It is imperative that the Court's image is not allowed to drift under the control or convenience of the Executive, which now appears to wield disproportionate influence over the affairs of the JCP."
Pending adjudication of constitutional challenges, he proposed that all judges of the Supreme Court be nominated to the Constitutional Bench on an interim basis.
"Any selective inclusion without a transparent process or identifiable criteria is patently discriminatory and damaging to institutional harmony."
Justice Shah stressed the urgent need to develop formal criteria for the selection of judges to the Constitutional Bench before any further constitution or expansion takes place.
"The absence of objective standards renders past nominations vulnerable to the charge of cherry-picking. This ad-hocism has already cast a long shadow on the legitimacy of the Constitutional Bench, and continued exclusion of senior judges without reason only worsens that perception."
Addressing another item on the JCP meeting's agendarelated to the framing of rules under Article 175A(20) of the Constitution — Justice Shah asserted that no policy decision should be made until the 26th Amendment's constitutionality is settled, as it is currently being challenged in a series of petitions.
In closing, he urged that his concerns be taken seriously.
"The strength of the judiciary rests on its credibility, its internal coherence, and its fidelity to constitutional principle — not on expediency or executive preference. If the Commission is to retain its institutional legitimacy, it must lead with integrity, transparency, and collective wisdom."
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