On October 18, the Supreme Judicial Council (SJC) approved far-reaching amendments to the Code of Conduct, barring superior court judges from engaging in public controversy or media interaction, particularly on political questions, and introducing new restrictions on social and diplomatic activity.
Chaired by Chief Justice of Pakistan (CJP) Yahya Afridi, the meeting was attended virtually by Justices Shah and Akhtar. Lahore High Court (LHC) Chief Justice Aalia Neelum and her Islamabad counterpart Justice Sardar Muhammad Sarfraz Dogar attended in person.
In the latest letter penned to the SJC chair and its members, Justices Shah and Akhtar said they had submitted their unsigned written comments at the start of the meeting in a letter dated October 17.
The duo then revised those comments to incorporate the “unfortunate and constitutionally inappropriate development” of the National Judicial Policy-Making Committee (NJPMC) discussing the Code of Conduct when the matter “lies solely and exclusively within the jurisdiction of the SJC”.
“These proposals, if adopted, will restrict judicial freedom, transform an open and collegial institution into a closed and hierarchical one, and create avenues for control, both internal and external,” Justices Shah and Akhtar said.
Among the various tweaks, the judges strongly objected to the amendment made to the Code of Conduct’s Article V, under which judges are prohibited from speaking, writing, debating or commenting publicly on controversial matters and on political questions, even where questions of law arise.
They also took exception to the insertion of Article XIX, which provides an “institutional response” for judges facing any “influence”, under which they will report to their respective chief justice, who will then inform the CJP.
“In the current political and institutional climate — where pressures on the judiciary are widely perceived — such a mechanism can be manipulated to suppress legitimate whistleblowing by judges who resist external interference,” the judges wrote.
On the incorporation of the 2003 SJC Resolutions/Guidelines, which includes a bar on attending social, cultural, political and diplomatic functions, the judges said it “reduces the judiciary’s visibility and connection to the community”.
Another clause treats the soliciting of conference or meeting invitations from foreign or international bodies as misconduct. The judges criticised this as well, noting that judges attend such seminars to “enhance comparative learning and professional competence-activities that strengthen judicial capacity, not diminish it”.
Justices Shah and Akhtar detailed 10 “weaknesses and risks” posed by the amendments to Article V alone, which is related to judges’ freedom of speech.
“The phrases ‘public controversy’ and ‘political questions’ are undefined and could encompass nearly every matter of constitutional or legal significance,” they pointed out.
They expressed the apprehension that the “fear of being accused of ‘public controversy’ will compel judges to remain silent on matters of constitutional importance, even outside the courtroom”.
“This self-censorship undermines intellectual growth within the judiciary and weakens the development of constitutional jurisprudence.”
On the ban on “any interaction with the media”, the judges said it “amounts to a gag order, imposing total silence and insulating the institution from public scrutiny”.
On the new rule for judges to “not cause any judicial or administrative matter to be discussed publicly”, they said it shields the judiciary from external accountability and disables judges from defending the institution publicly.
Justices Shah and Akhtar also cautioned that the provision “could be selectively invoked against outspoken judges, particularly those critical of executive overreach or internal mismanagement”, creating a “chilling effect” and opening the door to disciplinary misuse.
The judges further said: “In Pakistan’s fragile democratic environment, such a clause can be easily weaponised by executive or establishment forces through compliant leadership to silence independent voices within the judiciary.”
“During ‘testing times’ for democracy, judicial independence requires openness, moral courage-not silence or conformity.”Justices Shah and Akhtar also listed multiple reservations regarding the procedure of the amendments’ approval.
The judges recalled that in a letter dated October 13, they had “proposed that the present [SJC] meeting be postponed, or the Council be re-constituted, given that the seniority and status of Honourable Justice Sarfraz Dogar in his high court are under challenge” before the SC. “The outcome of that case will directly determine his eligibility to serve as a member of the Supreme Judicial Council.”
Justices Shah and Akhtar also highlighted that the 26th Amendment remains under challenge before the SC.
“Until that matter is decided, the status of the chairperson and one of the members is sub judice. Constitutional propriety therefore requires that no amendments to the Code be undertaken until that issue is settled,” they said.
The earlier October 13 letter stated, “While we would obviously not wish to comment on sub judice matters, it goes without saying that there is always an inherent uncertainty involved in any litigation, no matter how sanguine one may be about the outcome.”
It added that the decision in that case could directly affect Justice Dogar’s membership of the SJC, and consequently the council’s composition. The judge had also suggested it would be appropriate “if Justice Dogar recuses himself, then the council may proceed with its meetings/proceedings”.
“The decision in those proceedings can directly affect the Hon’ble Judge’s membership of, and consequently the composition of the Council.
They noted that since “three chief justices participating today (October 18) are ex officio members of both the NJPMC and the SJC, their participation in approving the amendments at the NJPMC meant that the majority of the SJC had effectively predecided the matter before it was even placed before the Council”.