Why two judges of Pakistan’s Supreme Court have resigned in protest

Two senior judges of Pakistan’s Supreme Court resigned from their posts on Thursday, after issuing unprecedented public warnings that the country’s new constitutional arrangement has hollowed out judicial independence and dismantled the Court’s constitutional role.

At the heart of these resignations is the 27th Constitutional Amendment, which introduces a Federal Constitution Court, a court superior to Pakistan's Supreme Court.

The FCC is to have original jurisdiction in Constitutional disputes involving the government and the enforcement of fundamental rights. All pending petitions or appeals in Pakistan's Supreme Court or its constitutional Benches that concern such matters are to be transferred to the FCC.

The 27th Amendment also abolishes the suo motu powers of Pakistan's Supreme Court. Justice Yahya Afridi will continue as the Chief Justice of Pakistan for the remainder of his tenure. However, "Pakistan" will be removed from the Supreme Court, meaning that this Court will no longer be referred to as the Supreme Court of Pakistan.

On November 13, two judges of the Supreme Court resigned in protest, namely Justice Athar Minallah and Justice Syed Mansoor Ali Shah.

In a resignation letter sent to the President of Pakistan, Justice Minallah said that the Constitution that he swore an oath to uphold and defend is no more. He added,

"These robes we wear are more than mere ornaments. They are to serve as a reminder of that most noble trust bestowed upon those fortunate enough to don them. Instead, throughout our history, they have too often stood as symbols of betrayal – through silence, and complicity alike. If future generations are to see them any differently, then our future cannot be a repeat of our past. It is in that ardent hope that I now hang these robes up for the last time and tender my formal resignation from the office of Judge of the Supreme Court of Pakistan with immediate effect. May those who judge do so in Truth."

Justice Shah expressed similar concerns in a 13-page resignation letter, in which he said that the State's action had fractured the unity of the nation’s apex court, stripped it of constitutional jurisdiction, and crippled judicial independence. He said that he could no longer uphold his oath while sitting inside a court that has been deprived of its constitutional role.

Justice Shah noted that the Twenty-Seventh Amendment created an entirely new Federal Constitutional Court, placed above the Supreme Court. He added,

"Serving in such a truncated and diminished court, I cannot protect the Constitution, nor can I even judicially examine the amendment that has disfigured it."

He criticised the Chief Justice for failing to resist the amendment as well.

"Instead of defending the institution he was entrusted to lead, he assented to the amendment and negotiated only the preservation of his own position and title, even as the Court's constitutional stature was being dismantled," Justice Shah said.

He went on to remark that the Federal Court has been created not out of Constitutional wisdom, but out of political expediency.

"I feel deep sorrow for the judges who will now be made part of the new Federal Constitutional Court and will sit in a court created not by constitutional wisdom, but by political expediency. This is not reform; it is regression of the most dangerous kind. It captures the judiciary, hollows out the Supreme Court of Pakistan, and replaces constitutional adjudication with a court shaped by power, not by principle," he said.

He has denounced the amendment as having no constitutional logic, no legal necessity, and no jurisprudential foundation. He also accused the Pakistan government of attempting to curate, control, and manufacture a constitutional court of their own choosing.

Justice Shah went on to opine that there were two choices before him: either to remain inside an arrangement that undermines the very foundation of the institution, or to step aside in protest.

He said the amendment had stripped the Supreme Court of its essential power to examine constitutional questions. The new change left the Supreme Court unable to judicially examine even the amendment that has disfigured it, he said.

"Continuing in such a version of the Supreme Court of Pakistan, would only suggest that I bartered my oath for titles, salaries, or privileges. Accordingly, for the reasons set out hereunder, and in terms of Article 206(1) of the Constitution of the Islamic Republic of Pakistan, I hereby resign from the office of Judge of the Supreme Court of Pakistan, with immediate effect," he added.

Justice Shah further termed the 2024 Twenty-Sixth Amendment the first step in eroding judicial independence. The latest amendment, he said, extinguishes all remaining hope.

“The light of judicial independence has not faded by accident — it has been dimmed by design," he said.

He concluded by saying that he was leaving the Supreme Court with a clear conscience and no regrets.