Both judges had called on Chief Justice of Pakistan Yahya Afridi in separate letters to summon a full court meeting and judicial conference to hold a debate on the 27th Constitutional Amendment.
In his letter to the president today, Justice Shah assailed the amendment as “a grave assault on the Constitution of Pakistan”, which “dismantles the Supreme Court of Pakistan, subjugates the judiciary to executive control, and strikes at the very heart of our constitutional democracy”.
“By fracturing the unity of the nation’s apex court, it has crippled judicial independence and integrity, pushing the country back by decades,” he wrote.
“As history bears witness, such a disfigurement of the constitutional order is unsustainable and will, in time, be reversed - but not before leaving deep institutional scars.”
The judge stated that he had a choice between serving as an SC justice, which he said “undermines the very foundation of the institution one has sworn to protect”, or hand in his resignation.
“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,” Justice Shah wrote.
“Unlike the 26th Amendment — when the Supreme Court of Pakistan still retained the jurisdiction to examine and answer the constitutional questions — the present amendment has stripped this court of that fundamental and critical jurisdiction and authority.
“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 stated.
On the other hand, Justice Minallah stated in his letter that when he took the oath of office 11 years ago, he swore to uphold not “a constitution” but “the Constitution”.
He wrote: “Prior to the passage of the 27th Amendment, I wrote to the Chief Justice of Pakistan, expressing concern over what its proposed features meant for our constitutional order.
“I need not reproduce the detailed contents of that letter, but suffice it to say that, against a canvas of selective silence and inaction, those fears have now come to be,” he added.
Justice Minallah regretted that the Constitution he swore to uphold was “no more”, adding that 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”.
“What is left of it is a mere shadow; one that breathes neither its spirit, nor speaks the words of the people to whom it belongs,” the judge wrote.
“These robes we wear are more than mere ornaments. They are to serve as a reminder of that most noble trust bestowed upon those fortunate enough to don them,” the letter read. “Instead, throughout our history, they have too often stood as symbols of betrayal through silence and complicity alike.”
Justice Minallah is the eldest son of Nasrum Minallah, who was a commissioner during the 1960s and 70s. He is the son-in-law of Justice Safdar Shah, who was part of the bench that convicted and sentenced former prime minister Zulfikar Ali Bhutto but wrote a dissenting note against the conviction, for which he faced the wrath of the then-military dictator, General Ziaul Haq.
He joined Pakistan Customs and rose to senior positions, but later resigned and started practising law. Following the sacking of former chief justice Iftikhar Mohammad Chaudhry, he joined the lawyers’ movement for the restoration of the judiciary.
However, after Justice Chaudhry’s restoration, he became a critic of the judiciary because of excessive suo motu cases, which led to the pendency of routine cases.
In November 2022, then-CJP Umar Ata Bandial administered the oath to Justice Minallah, Justice Shahid Waheed and Justice Syed Hasan Azhar Rizvi as the judges of the Supreme Court.
Earlier in the evening, sources told Dawn that the president was expected to administer the oath to the chief justice of the Federal Constitutional Court — the establishment of which would now be realised after the enactment of the 27th Amendment bill — tomorrow at the Presidency.
The president’s assent to the legislation came hours after the Senate approved the bill for the amendment after voting on it for a second time amid the opposition’s protest.
Announcing the result, Senate Chairman Yousuf Raza Gilani said 64 votes had been cast in favour of the bill and four against it. “So the motion is carried by the votes of not less than two-thirds of the total membership of the Senate, and consequently, the bill stands passed.
The bill was initially presented in the Senate for voting on Monday and passed the same day. It was then referred to the NA, which approved it with some amendments yesterday. Therefore, the proposed legislation was again presented in the Senate today to consider the latest changes.
The 27th Amendment promised, on paper, to “streamline” governance through new constitutional courts, revived executive magistrates and even a relook at how the armed forces are commanded.
At the heart of the amendment is the creation of the Federal Constitutional Court (FCC), which would have superior court judges from all provinces and hear constitutional matters, while regular courts would continue to hear all other matters.
Clause 23 of the amendment stated that the incumbent CJP — Justice Yahya Afridi — would maintain his office until the end of his tenure. Clause 56 of the amendment stated that once incumbent CJP Afridi’s term comes to an end, the future CJP would be the senior-most judge from the chief justices of the FCC and apex court.
Sources told Dawn that the president was expected to administer the oath to the chief justice of the FCC tomorrow at the Presidency.