ISLAMABAD: Senior Puisne Judge of the Supreme Court Justice Syed Mansoor Ali Shah has stated that the proposed Federal Constitutional Court does not arise from any genuine reform agenda; it is, rather, a political device to weaken and control the judiciary, while its judges will be appointed without any constitutional parameters, as is the case with the Constitutional Bench. In a six-page letter addressed to Chief Justice of Pakistan (CJP) Yahya Afridi, Justice Mansoor said that such an arrangement vests decisive power in the Executive and invites manipulation of the judicial process, adding that a court born of Executive cannot be independent.
Justice Shah further said that a controlled constitutional court may serve transient political interests, but it will permanently damage the Republic, adding that the independence of the judiciary is not a privilege of judges; it is the people’s protection against arbitrary power.
“This moment demands that you, as Head of the Institution, raise the alarm before the independence of the judiciary is irretrievably lost,” he wrote.
In this respect, he stressed the need for urgent institutional consultation regarding the proposed 26th Constitutional Amendment and requested the CJP that a Full Court meeting of the Supreme Court, or preferably a joint convention of all constitutional court judges—including those of the Federal Shariat Court and the high courts—should be convened immediately to deliberate on the implications of the proposed amendment and to articulate the judiciary’s collective stance.
He further said that detailed and institutional consultation with the judiciary is indispensable before any attempt is made to introduce the proposed 27th Constitutional Amendment, which entails a major restructuring of the country’s judiciary through the creation of a separate Federal Constitutional Court and the consequent relegation of the Supreme Court to a purely appellate body.
Justice Mansoor urged the CJP to formally engage with the Executive and make it unequivocally clear that no amendment affecting the judiciary should proceed without prior consultation with the judges of the constitutional courts.
“I write to you in your capacity as Head of the Judiciary—the custodian of its independence and the guardian of the separation of powers—to express grave concern over reports that the government is poised to introduce the 27th Amendment to the Constitution of Pakistan,” he wrote.
The senior puisne judge maintained that such a far-reaching change in the structure of the judiciary cannot be undertaken unilaterally by the Executive or the Legislature.
He further said that the judiciary—by which he means not merely the chief justice but the collective body of judges of the constitutional courts—must be formally and meaningfully engaged.
“You, as the Head of the Judiciary, are the trustee of this institution; therefore, it is your constitutional and moral duty to ensure that no amendment affecting the judiciary proceeds without the judiciary’s considered, collegial and recorded response,” Justice Mansoor wrote, adding that to permit otherwise would be to allow the judiciary to be restructured without its own participation, violating both constitutional propriety and the principle of separation of powers.
He further wrote that the Supreme Court, as the guardian of the Constitution, cannot remain a passive observer to changes that may redefine its own place in the constitutional hierarchy.
He said that international standards make clear that no redesign of the judiciary should proceed without structured consultation with the judiciary itself, and that such consultation must be institutional and collegial, embracing the collective voice of judges of the constitutional courts—not confined to the chief justice alone.
Justice Mansoor said that the Magna Carta of Judges (2010) affirms that “the judiciary shall be involved in all decisions which affect the practice of judicial functions.”
Similarly, he said, the Venice Commission’s Rule of Law Checklist insists that all law-making affecting the judiciary be transparent, accountable, inclusive and participatory, while the Commonwealth (Latimer House) Principles on the three Branches of Government (2003) require that matters concerning the organisation or resources of the judiciary be undertaken only after consultation between the Head of the Judiciary and the Executive or Legislature.
“In the United Kingdom, the creation of the Supreme Court under the Constitutional Reform Act 2005 followed a formal Concordat between the Lord Chief Justice and the government, institutionalising regular consultation on matters affecting the courts,” he wrote.
Justice Mansoor said that these global examples collectively establish a constitutional ethos: any amendment affecting the judiciary’s composition, jurisdiction, or independence must be preceded by a meaningful and collegial dialogue with the judiciary.
“Has such a dialogue taken place in Pakistan? Have the judges of the constitutional courts—the Supreme Court, the Federal Shariat Court and the high courts—been invited to deliberate on the proposed amendment and record their institutional response?” he questioned, adding that if not, the process stands stripped of constitutional propriety and democratic legitimacy.
Justice Mansoor further said that history does not easily forgive such abdications of duty; it records them as constitutional failures of leadership and moments when silence within institutions weakened the very edifice they were meant to guard.
He said that another question arises as to whether a new constitutional amendment can be advanced while the validity of the previous one—already under challenge—remains undecided.
He said that the petitions challenging the 26th Constitutional Amendment, which was itself criticised for striking at the heart of judicial independence, are still pending, adding that the challenge to the 26th Amendment goes to the very legitimacy of the current regime and to the current leadership of the present Supreme Court.
“Until those questions are conclusively settled, any further attempt to alter the judicial architecture risks camouflaging unresolved constitutional infirmities and casting further doubt on the credibility of both the amendment process and the constitutional order,” Justice Mansoor wrote.
He further said that it has been suggested that the proposed amendment of establishing a Constitutional Court aims to reduce case backlog. He, however, said that this premise is unsupported by Pakistan’s own data and experience, adding that according to the Law and Justice Commission’s 2023 Judicial Statistics, Pakistan had 2.26 million pending cases, of which nearly 82 percent were before the district judiciary, while the Supreme Court accounted for less than three percent of the total.
“If reduction of pendency is indeed the government’s objective, reform must focus on the district judiciary—filling vacancies, strengthening case management, institutionalising alternative dispute resolution, and ensuring data-driven accountability,” the senior judge wrote, adding that the proposed constitutional amendment, by contrast, diverts attention from the real problem while weakening the Supreme Court’s unified authority.
Similarly, he said that the claim that a separate constitutional court is essential for constitutional adjudication is also unfounded, adding that strong and independent judiciaries around the world effectively discharge both constitutional and appellate jurisdiction without such a parallel court.
In this respect, Justice Mansoor claimed that the United States, Canada, Australia, New Zealand, Japan and the United Kingdom each maintain a single apex court that hears both constitutional and ordinary cases.
“This demonstrates that institutional independence and judicial quality—not multiplicity of apex courts—ensure constitutional fidelity. Pakistan belongs to the same common-law and decentralised-review tradition, where the Supreme Court has historically and effectively performed both constitutional and appellate functions,” he wrote.
He said that the real solution lies not in creating another apex forum but in ensuring that the existing (apex) court is equipped with independent, competent and adequately supported judges.
Justice Mansoor maintained that the Supreme Court of Pakistan, as it stands—particularly in its pre-26th Amendment form—already exercises comprehensive constitutional, civil and criminal jurisdiction under Articles 184, 185, 186 and 187 of the Constitution.
“Its internal committee system allocates benches and marks cases, ensuring an institutional and transparent process for the adjudication of all causes, whether constitutional or otherwise,” he wrote, adding that this structure has served the Republic since independence—nearly 78 years—without compromising the court’s role as the final arbiter of law and protector of fundamental rights.
He further said that the experience of countries such as Germany, Italy and Spain is often cited to justify the idea of a separate constitutional court, but that comparison is fundamentally misplaced.
Justice Mansoor said that those jurisdictions belong to the civil-law tradition, where, historically, the judiciary could not review or strike down legislation, adding that their constitutional courts were created in the aftermath of totalitarian regimes and world wars to ensure that legislation conformed to newly adopted constitutions guaranteeing fundamental rights.
“From the very inception of our Republic, the Supreme Court was designed to embody both roles: a constitutional court and a court of final appeal,” he wrote, adding that it possesses full judicial review powers, including the authority to strike down unconstitutional laws and to enforce fundamental rights.
“You hold your office not merely as its administrator but as its guardian, and this moment demands leadership, transparency and institutional resolve. If such consultation is not initiated under your stewardship, it will inevitably be seen as acquiescence and an abdication of the trust reposed in your office,” he wrote.
“I therefore urge you to act with foresight and conviction to safeguard the dignity of the Supreme Court and, with it, the constitutional order of the Islamic Republic of Pakistan,” Justice Mansoor concluded.
Meanwhile, during the hearing of a case concerning the promotion of Dr Azam Ali from the Punjab Livestock Department, Justice Mansoor Ali Shah made interesting remarks regarding the proposed establishment of a Constitutional Court.
A two-member bench, comprising Justice Mansoor Ali Shah and Justice Aqeel Abbasi, heard the case related to the promotion of Dr Azam Ali. The petitioner’s lawyer argued that his client had been overlooked, and junior officers had been promoted instead.
Upon this, Justice Mansoor said, “Show us the documents that your client was indeed ignored by promoting juniors.”
On this occasion, Justice Mansoor remarked jokingly, “If there is a very difficult question, we can refer the matter to the Federal Constitutional Court. After all, we are just simple folks here.” The courtroom echoed with laughter at this remark. Subsequently, the court rejected the petition.