Judges Clarify Stance on Full Court Formation

ISLAMABAD: Justices Mansoor Ali Shah and Munib Akhtar of the Supreme Court have stated that the Judicial Commission of Pakistan (JCP) is not the suitable platform for discussions regarding the establishment of a full court to review petitions challenging the 26th Constitutional Amendment, according to a report.

The two senior justices articulated their positions in a comprehensive letter, offering context on why a full court was not assembled to address the 26th Amendment issue.

“We exerted considerable informal efforts to convene a Full Court meeting, either through the Court’s judicial proceedings or, at the very least, administratively, to consider petitions contesting the 26th Amendment,” the letter conveyed.

The judges noted that the necessary consensus—achievable through legal means and court practice via a Full Court Meeting—was unattainable when the apex court faced a critical juncture. Consequently, the court could not formulate an institutional response. The letter emphasized that the Chief Justice of Pakistan’s (CJP) individual meetings with judges could not substitute the process, especially without the participation or invitation of other committee members.

Both judges underscored the necessity of collective deliberation and decision-making, which they lamented did not materialize.

They asserted that promptly building consensus through a Full Court meeting was essential to provide a much-needed institutional response when the Supreme Court confronted a pivotal issue.

“That response could only originate from the judges themselves, either by convening in open Court or meeting in a full conclave,” they stated, adding that the repercussions of this inaction continue to affect the Supreme Court, the judiciary, and the broader constitutional framework.

Additionally, the judges noted that the matter transitioned to a more structured phase with a legally compliant committee meeting. The majority present made decisions reflected in the minutes of October 31, 2024, constituting a legally binding decision that was not subject to disregard.

They recounted writing again, partly in protest, to ensure adherence when the petitions were not scheduled on November 4, 2024, as instructed by the Committee. Regrettably, this letter was also ignored. “Once again, a binding decision of the Committee was not given effect,” the letter expressed, also noting their careful review of the CJP’s notes now in the public domain.

They remarked that the Full Court could have considered the entire matter if convened promptly, as legally required.

Referring to the JCP meeting, the justices mentioned that the CJP’s notes were not circulated to other committee members. Instead, one note was read during the JCP meeting on November 5, 2024.

The judges clarified that the JCP was not the appropriate venue for such matters, nor could the Committee’s decision of October 31, 2024, be forwarded to the Constitutional Bench or any committee thereof on either October 31 or November 5, 2024, as those entities did not exist then. Furthermore, they lacked authority or jurisdiction to override or undermine a lawful decision of the Committee.

“We reiterate that on both dates, the Committee’s decision of 31.10.2024 was the only legally binding decision in effect, which should have been fully implemented. Regrettably, this never occurred,” the judges affirmed.

The letter contends that soliciting individual opinions from judges contradicts legal norms and judicial practice, rendering such opinions legally inconsequential.

“If judges were to be consulted, the proper (indeed only) course was to convene a Full Court meeting on the administrative side where judges could deliberate and decide together,” the letter asserted.

The justices stated that a hurried, private canvassing of judges’ views lacked legal basis or institutional legitimacy. They added that they were excluded from these rapid exchanges with judges and were unaware of the information provided or questions posed, or the context thereof.

Justices Shah and Akhtar reiterated that presenting the matter before the Full Court on the judicial side would have allowed the Supreme Court to determine whether challenges to the 26th Amendment should be heard or directed to a Constitutional Bench established under the 26th Amendment. However, the CJP disagreed.