• In a letter, two senior judges reject CJP’s explanation about not convening full court on 26th Amendment controversy
• Letter says CJP’s response, now in public domain, neither provides valid reason nor legal justification for not convening full court
ISLAMABAD: The Supreme Court’s decision to make public the minutes of the committee meeting held on Oct 31, 2024 — convened to call a full court session to determine the vires (validity) of the 26th Constitutional Amendment — has caused a considerable stir on the judicial front.
Two notes from Chief Justice of Pakistan (CJP) Yahya Afridi were uploaded on the SC’s official website on August 14, reviving the debate on 26th Amendment controversy.
On Wednesday, a letter surfaced from two senior judges of the Supreme Court, Justice Syed Mansoor Ali Shah and Justice Munib Akhtar. The letter appeared to be a response to the publication of the minutes of the three-judge committee formed under the Supreme Court (Practice and Procedure) Act, 2023.
The two judges had convened the committee meeting on Oct 31, last year and had formally requested CJP Afridi to constitute a full court to hear the petitions challenging the 26th Amendment.
The two notes from the CJP suggested that he had declined to implement the committee’s decision to place the constitutional challenges before the full court comprising all judges of the apex court, because such a move could dampen the much-needed spirit of collegiality among the judges and further expose the court to public scrutiny.
However, in response to CJP’s explanation, both judges wrote a joint letter on Wednesday. In the letter, they wrote: “The challenges to the 26th Amendment continue to remain pending, and a golden opportunity to decide them at the earliest instance before the institution as a whole — i.e., the full court as it then stood — has been lost, perhaps irretrievably.
This was the most appropriate forum (in terms of composition) to resolve the fundamental constitutional issues in a manner that would not only satisfy the dictates of law and justice but also ensure a judicial decision whose legitimacy could not be questioned.”
Consensus
As a result, the court failed to develop an institutional response. The judges emphasised that this process could not be substituted by the CJP’s informal individual meetings with judges — especially when the other two committee members (the judges themselves) were neither involved in, nor invited to, these informal consultations.
In the letter, the judges wrote that they had made strenuous efforts to have a full court meeting convened — either through a sitting on the judicial side or at least an administrative meeting —to hear the petitions challenging the 26th Amendment.
At a time when no issue was more important for the court, a consensus was needed. That consensus, they stated, could only have been achieved in a manner consistent with the law and the court’s usual practice — through a full court meeting. Unfortunately, that consensus never emerged, the letter lamented.
“What was required,” the letter noted, “was collective deliberation and decision-making. That, regrettably, never took place. At a time when no question was more important for the court, a consensus should have been immediately sought through a full court meeting to enable the judiciary to respond institutionally.”
Such a response, they added, could only have come from the judges themselves — by convening in open court or in a full conclave. The dire consequences of not doing so, the letter warned, continue to reverberate through the court, the wider judiciary, and the entire constitutional framework.
The letter also expressed regret over the violation of the committee’s decision as it transitioned to a more formal phase. The Oct 31st meeting had been properly convened under the law, and the majority in attendance had made binding decisions reflected in the official minutes.
This decision, they wrote, was legally binding and could not be disregarded. When the challenges were not scheduled for hearing on Nov 4, 2024, as directed by the committee, the two judges wrote again — partly as a protest and certainly to ensure compliance. Unfortunately, this letter, too, was disregarded.
The judges reiterated that a binding decision of the committee had not been implemented. They stated they had thoroughly examined both notes of the CJP — now available in the public domain — and concluded that they neither provided a valid reason nor legal justification for non-compliance. “Had the full court been timely convened, as required by law,” they emphasised, “the entire matter would have been deliberated appropriately.”
Regarding the meeting of the Judicial Commission of Pakistan (JCP), the judges observed that neither of the CJP’s two notes had been shared with other committee members. One of the notes was merely read aloud by the CJP at the JCP meeting on Nov 5, 2024.
The judges argued that the JCP was not the appropriate forum for addressing this issue, nor could the committee’s Oct 31 decision have been referred to the constitutional bench or any related committee on either Oct 31 or Nov 5, as such entities did not exist at that time.
Moreover, they said, those entities lacked the jurisdiction to override or nullify a lawful decision taken by the committee.
“We reiterate that on both of those dates,” the judges wrote, “the only legally binding decision in effect was that of the committee on Oct 31, which ought to have been fully implemented in both letter and spirit. Regrettably, this was never done.”
Finally, the judges addressed the public release of the committee’s minutes and related documents on the SC’s website. “Since the minutes and record have now been uploaded, despite the committee’s previous directive against doing so, and are irreversibly in the public domain,” the judges wrote, “we now require that this letter also be placed on the website alongside the record and materials related to the Oct 31 meeting.”
“If this is not done immediately,” the letter concluded, “this communication may be placed in the public domain through other appropriate means. And if, ultimately, it is now for History to judge — then let the record, at the very least, be complete.”
Published in Dawn, August 21st, 2025