First Casualty: Two SC Judges Resign Over 27th Amendment

The Resignation of Two Supreme Court Judges and the Crisis in Pakistan’s Judiciary

The 27th Constitutional Amendment in Pakistan has triggered a significant crisis within the country’s judiciary. Yesterday, two senior judges of the Supreme Court, Justice Syed Mansoor Ali Shah and Justice Athar Minallah, resigned from their positions, marking what many see as the first major casualty of this controversial reform.

The amendment, signed by President Asif Ali Zardari, introduces sweeping changes to the higher judiciary and the armed forces. However, it has sparked widespread concern that these reforms could undermine the very foundations of the Pakistani Constitution. Critics argue that the amendment shifts power away from the judiciary and places it under greater executive control, threatening the balance of power that is essential for a constitutional democracy.

A Judge’s Letter: A Strong Condemnation of the Amendment

In a five-page letter, Justice Mansoor Ali Shah expressed deep concerns about the 27th Amendment. He described it as a “grave assault on the Constitution of Pakistan,” claiming that it dismantles the Supreme Court and subjugates the judiciary to executive influence. According to him, the amendment weakens judicial independence and integrity, pushing the country back by decades.

He emphasized that the Supreme Court no longer retains its fundamental jurisdiction to examine and answer constitutional questions, which was a key feature of the previous 26th Amendment. This loss of authority, he argued, makes it impossible for judges to protect the Constitution or even judicially assess the amendment itself.

Justice Mansoor stated that staying on as a judge would be an act of silent acquiescence in a constitutional wrong. He felt that continuing in such a court would imply that he had bartered his oath for titles, salaries, or privileges. Therefore, he chose to resign, citing Article 206(1) of the Constitution of the Islamic Republic of Pakistan.

Criticism of the Judicial Leadership

The judge also criticized the leadership of the Supreme Court, particularly the Chief Justice, for failing to resist the amendment. He pointed out that the government and current judicial leadership acted without transparency or consultation, despite their own legitimacy being under serious constitutional scrutiny.

Justice Mansoor argued that when the head of the judiciary prioritizes personal continuity over institutional integrity, especially while facing judicial scrutiny, it results in abdication rather than leadership. He stressed that until these legitimacy questions are resolved, neither the government nor the judicial leadership had any moral or constitutional authority to alter the judicial architecture of the state.

The Creation of a New Federal Constitutional Court

Another significant aspect of the 27th Amendment is the creation of a new Federal Constitutional Court above the Supreme Court. This arrangement, according to Justice Mansoor, is entirely alien to the common-law world. He claimed that the amendment lacks constitutional logic, legal necessity, and jurisprudential foundation, as it was enacted without debate, consultation, or input from the judiciary it seeks to remake.

Justice Athar Minallah’s Resignation

In a separate letter, Justice Athar Minallah also expressed his resignation, highlighting the deep sense of betrayal he felt toward the Constitution. He recalled the oaths he took over the past decade, emphasizing that his promise was not to a constitution but to the Constitution itself.

He lamented that the Constitution he once swore to uphold and defend no longer exists. He described the current situation as a mere shadow of the original, one that does not breathe the spirit of the people or speak their words.

Justice Athar concluded his letter by expressing hope that future generations will not repeat the mistakes of the past. He stated that it is in this ardent hope that he now resigns from his position, hanging up his robes for the last time.

The Broader Implications

The resignations of these two judges have sent shockwaves through Pakistan’s legal and political landscape. They highlight a growing crisis of confidence in the judiciary and raise serious questions about the direction of the country’s constitutional development.

As the nation grapples with the implications of the 27th Amendment, the actions of these judges serve as a powerful reminder of the importance of judicial independence and the need for a robust, transparent, and accountable judiciary.