ISLAMABAD:
Former Supreme Court judge Mansoor Ali Shah has raised serious questions over what he described as the inability of incumbent Chief Justice of Pakistan (CJP) Yahya Afridi to defend judicial independence, arguing that a moment demanding institutional resistance instead met silence and accommodation.
In his recent speech at Schell Centre for International Human Rights, Yale Law School on April 10, Justice retired Mansoor Ali Shah said that at a moment when the dignity of the court demanded principled resistance, “the incumbent chief justice offered none”.
He further deplored that the CJ assented to the amendment and negotiated only the preservation of his own position and title. “My colleagues’ silence was its own verdict. No collective statement. No refusal. No act of professional solidarity.”
The former judge also pointed to developments following the Sunni Ittehad Council case, noting that the SC had ruled that independent candidates affiliated with the opposition were entitled to reserved seats, a decision that would have deprived the ruling coalition of a two-thirds constitutional majority.
He said the government refused to implement the judgment and moved to prevent similar rulings in the future.
Shah stated that the 26th Amendment, passed in October 2024, restructured the Judicial Commission of Pakistan by reducing judicial members and increasing political and executive representation to a majority of eight out of thirteen.
He added that it also ended the seniority-based appointment of the chief justice, empowering a parliamentary committee to select from among the three most senior judges.
“No criteria were prescribed. No reasons were required.”
The panel of three changes what a judge must be to become CJ. Under the seniority convention, a judge had no incentive to cultivate executive favour; the position was determined by an objective rule. The panel converts the chief justiceship into a competition.
The committee will favour the candidate least likely to cause institutional discomfort, whose record suggests accommodation rather than independence, whose jurisprudence signals cooperation rather than resistance. “This creates a backward incentive that shapes judicial behaviour years before the moment of appointment.”
Despite these concerns, Justice Shah said he initially chose to remain within the system.
However, Justice Shah said that he chose to stay because there remained a sliver of hope that the SC would, as a full court, rise to examine the amendment and reclaim its constitutional role. “I trusted that institutional reason and constitutional morality would prevail.”
He said the 27th Amendment, passed in November 2025, completed “a dismantling of the existing judicial structure” by creating the Federal Constitutional Court above the SC, while stripping the latter of its constitutional jurisdiction and reducing it to an appellate role.
Shah states that the 27th Amendment came in November 2025 and completed the dismantlement. It created above the SC a new FCC composed of judges curated under the new executive-controlled appointment process. The SC that remained was stripped of constitutional jurisdiction, reduced to an appellate shell. The amendment introduced the power to transfer high court judges across provinces without their consent, a mechanism for purging independent jurists.
He further elaborated on the implications of the amendment.
“The 27th Amendment did not merely strip the Supreme Court of constitutional jurisdiction. It created above it a new Federal Constitutional Court, composed of judges curated under the executive-controlled appointment process, and equipped that court with the power to disclaim seventy-eight years of Supreme Court jurisprudence as merely persuasive. The FCC has already exercised that power. In its early decisions, it has declared that Supreme Court precedents—the entire accumulated body of constitutional adjudication from independence to the present—do not bind it. It may follow them. It may not. The choice is the FCC’s alone, unreviewable, unreasoned, made by two judges whose appointments were controlled by the government whose constitutional amendments the court was designed to insulate from challenge.”
