Supreme Court (SC) Justice Athar Minallah has written an emphatic letter to Chief Justice of Pakistan (CJP) Yahya Afridi, calling for the convening of a conference to consider threats to the judiciary while also lamenting the use of the apex court as an instrument to suppress the people’s will by “unelected elite”, it emerged on Tuesday.

The development comes as the government is making moves for the passage of the 27th Constitutional Amendment. The bill, which has been passed by the Senate, seeks crucial changes to a number of articles, mostly dealing with the judiciary and the military leadership.

In the seven-page letter, which Dawn has seen, Justice Minallah said that the missive was being recorded as a “solemn duty to the Constitution and to place on record for future generations how their destiny was being shaped behind the marble walls of the last resort of justice”.

He said that it was being written in the wake of recent events, which had greatly eroded public confidence in the judiciary.

“Institutions are not built overnight, but they can be destroyed in no time through fear, surrender or submission to the powers. The history of our judiciary is not unblemished nor flattering. However, its past failings, no matter how grave, cannot justify its continued capture to serve the interests of the unelected elites,” he said.

Justice Minallah said that as a sitting SC judge, he felt it was his duty to raise his concerns regarding the erosion of the people’s trust.

“I had taken an oath to defend, protect, and preserve the Constitution, but find myself helpless because the fundamental rights covenanted to the people have too often been reduced to mere cliché or rhetoric. We may pretend otherwise, but the stark reality is unpleasant and embarrassing for me as a judge of the highest Court and as a guardian of the Constitution,” he said.

Justice Minallah said that the truth had been concealed from the people for too long, adding that they had been misled and exploited so that the elite capture could sustain.

“From the very inception of our independence, the history of the state has been marred by the unholy alliance between certain state institutions and entrenched elites. An alliance having the hallmark of control, privilege, and impunity. The SC, by design or omission, has too often been employed as an instrument to suppress the will of the people rather than to safeguard it,” he said.

‘Political dissent has been criminalised’

In his letter, Justice Minallah also said that jurisprudence had too often bowed before power and might instead of standing on the side of the people. He highlighted the removal and execution of former prime minister Zulfikar Ali Bhutto, saying it “remains one of the gravest and most unpardonable betrayal of our oath and of the people’s trust”.

He further said that the persecution of Benazir Bhutto by “unelected elements” within state institutions, and the disqualification of Nawaz Sharif and the harassment of him and his daughter were a “continuation of a pattern of suppression of the people’s will when the interests of the unelected elite were threatened”.

The SC judge noted that President Asif Ali Zardari and Prime Minister Shehbaz Sharif had also fallen victim to this phenomenon.

“The phenomenon represents a consistent pattern of elite manipulation, wherein leaders are fostered and then ruined. Once they are backed by the people’s mandate, they are systemically dismantled if and when they challenge the entrenched power. The will of the people has repeatedly been subverted to perpetuate the elite capture of the state; a betrayal and subversion that strikes at the very heart of constitutional democracy,” he said.

He said that PTI founder Imran Khan was also being victimised under the same cycle of suppression.

“Political dissent has been criminalised, those who refuse to bend, including women, are made to endure inhuman conditions. It is no longer a secret that justice is denied to them,” he said.

“The truth is known to us, but it is whispered only in the tea room and chambers of this Court. The independence of this institution has too often been compromised from within, whether through surrender or through active participation,” he said.

“We proclaim ourselves to be guardians of the fundamental rights, but we maintained silence when a former chief justice of Pakistan told us that the phenomenon of enforced disappearance had reached his doorstep. We also chose to look the other way when another chief justice, who in the context of the reserved seats case, had warned twelve judges of this very court that he was the one responsible for stalling the imposition of martial law and that ‘they would come and send us home’.”

He further said that under the watch of the apex court, electoral outcomes were manipulated, the will of the people suppressed, dissenting voices silenced, undesirable political allegiance and opinions criminalised, and journalists abducted or intimidated.

‘Need for introspection undeniable’

Justice Minallah further said that at this critical juncture, the need for introspection was “undeniable”.

“I would respectfully urge that a judicial conference be convened for having an open institutional dialogue with all judges of the SC and the high courts to consider threats to independence of the judiciary that may be jeopardising its constitutional function of acting as a machinery for enforcement of fundamental rights of citizens,” he said.

“A candid and open discussion on the state of our institution, the challenges to its independence, and the steps necessary to reclaim the people’s trust has become inevitable. The judiciary is at a perilous crossroads. The truth must be spoken at this moment of reckoning,” he said.

He further said that Parliament may wish to consider the judiciary’s institutional perspective articulated through the proposed judicial conference, before it embarks upon “tinkering with the basic law of the land”.

He noted that news reports suggested that preparations were underway to house the new Federal Constitutional Court (FCC) within the building of the Federal Shariat Court (FSC).

“What is the invisible process through which some within the judiciary have been made aware of the changes that are to proposed through a Constitutional amendment? And what explains their eagerness to make advance administrative arrangements to accommodate the proposed structure of the judiciary even prior to the Parliament considering it?” he asked.

He said that the judiciary’s foremost loyalty lay not in self-preservation nor in deference to power but in allegiance to the people and to the Constitution.

“This court and the judiciary as an institution are at a perilous crossroad and silence in the face of the systemic erosion of judicial independence would only amount to complicity. Our oath compels us to speak and uphold the truth and to guard the Constitution even when it is inconvenient to do so,” he said.

Full court demanded amid executive onslaught

Justice Minallah’s letter comes a day after Justice Mansoor Ali Shah, in addition to several lawyers and former judges, requested CJP Afridi to play his role and act as the guardian of the judiciary’s independence.

Senior puisne judge Shah, in a six-page letter, described the proposed amendment as a political device to weaken the judiciary and urged CJP Afridi to confront the executive to lay down a rule that no amendments affecting the judiciary be adopted without prior consultations with superior judges.

“You [CJP] act not merely as its administrator but as its guardian,” Justice Shah said while also requesting a full court meeting or preferably a joint convention of all constitutional court judges, including the FSC and high courts, to articulate the judiciary’s collective stance.

Justice Shah emphasised that this moment demanded leadership, transparency and institutional resolve. If such consultation is not initiated under CJ’s stewardship, it will inevitably be seen as acquiescence and an abdication of the trust reposed in the high office, he added.

In his letter, Justice Shah also questioned the justification for creating the proposed FCC, asking what constitutional vacuum it would seek to fill.

The proposed FCC does not arise from any genuine reform agenda, and its judges will be appointed without any constitutional parameters, as was the case with the Constitutional Bench (CB), the letter said, adding that such an arrangement vested decisive power in the executive and invited manipulation of the judicial process. A court may serve transient political interests, but it will permanently damage the republic, he added.

Separately, former judges and top lawyers also wrote a letter to CJP Afridi, urging him to summon a full court meeting to discuss the 27th Constitutional Amendment. The request came in a letter that was penned by senior counsel Faisal Siddiqi and endorsed by former SC senior puisne judge retired Justice Mushir Alam, former Sindh High Court (SHC) judge retired Justice Nadeem Akhtar and nine other top lawyers.