Supreme Court Justices Mansoor Ali Shah and Athar Minallah on Thursday tendered their resignations to President Asif Ali Zardari, hours after 27th Constitutional Amendment was signed into law.
In his resignation letter, Shah described the 27th Amendment as a “grave assault” on the Constitution, stating it subjugated the judiciary to executive control and left just more vulnerable to power. “By fracturing the unity of the nation’s apex court, it has crippled judicial independence and integrity, pushing the country back by decades,” he emphasized.
Such legislations, he warned, are unsustainable “and will, in time, be reversed—but not before leaving deep institutional scars.” Following the 27th Amendment’s passage, he said, he had the option to either remain within a system that undermined the foundation of the judiciary or step aside in protest.
“Staying on would not only amount to silent acquiescence in a constitutional wrong, but would also mean continuing to sit in a court whose constitutional voice has been muted,” he wrote, lamenting the 27th Amendment had stripped the apex court of its jurisdiction to examine and answer constitutional questions. “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 added.
In his letter, he noted a government whose legitimacy was under serious constitutional challenge had enacted the 27th Amendment. He also lashed out at Chief Justice of Pakistan Yahya Afridi, stating he had not defended the Supreme Court and only sought to preserve his own position and title.
Minallah’s letter, meanwhile, noted that when he took the oath of office, he swore to uphold not “a constitution” but “the Constitution.” He recalled that he had previously written of his concerns to the CJP ahead of the passage of the 27th Amendment, lamenting that the fears he had penned therein had now come to be.
The judge regretted the Constitution he swore to uphold was “no more,” adding he “can think of no greater assault on its memory than to pretend that, as new foundations are now laid, they rest upon anything other than its grave.”
Third resignation
Also on Thursday, former attorney general of Pakistan Makhdoom Ali Khan tendered his resignation from the Law and Justice Commission of Pakistan. In his letter to CJP Afridi, he said he had hoped to “negotiate” a means to avoid a “free fall” after the 26th Amendment.
However, he wrote, the 27th Constitutional Amendment had “sunk that ship.” Maintaining it had ended the concept of an independent judiciary, he added: “No law reform is possible or can be effective without an independent judiciary.” As such, he wrote, there was no purpose in continuing to serve on the commission.
Both Houses of Parliament passed the contentious 27th Amendment this week, with the president subsequently signing it into law. The law introduces sweeping changes to the military command the judiciary, including establishing a Federal Constitutional Court (FCC) that would solely hear constitutional matters, while the Supreme Court would continue to hear all other matters.
Government response
Speaking to media after the resignations went public, Special Assistant to the Prime Minister on Political Affairs Rana Sanaullah said both judges were pursuing a “political” and “self-serving” agenda. “Both the judges, in their letters, could not point out a single thing in the 27th Amendment which could be termed an attack on the Constitution,” he said, dubbing them “political judges” who should not hold such prestigious positions.
Separately, Minister of State for Law and Justice Barrister Aqeel Malik issued a statement declaring the two letters “unconstitutional.” Noting the judges had every right to resign, he questioned why the resignations followed Parliament exercising its constitutional right.
He said such resignations could “be termed unconstitutional acts in several respects.” He emphasized Parliament has the privilege to enact laws and amend the Constitution, adding the Supreme Court was formed by the same Constitution and any amendment to it could not be viewed as a direct assault on any institution.
“Even laws concerning the Supreme Court are legislated by Parliament,” he said, maintaining the 27th Amendment would bring further improvement in the judicial system. “Political games were played in the courts, which was unfortunate. Decisions should be made according to law and justice, not personal interests,” he added.