Justice Minallah decries SC's 'elite capture' to suppress public mandate in letter to CJP

ISLAMABAD: Supreme Court Justice Athar Minallah on Tuesday raised serious concerns over the independence of Pakistan’s judiciary, alleging that the apex court is increasingly being used by the “unelected elite” to suppress the people’s will.

In a detailed letter to Chief Justice of Pakistan (CJP) Yahya Afridi, Justice Minallah called for a judicial conference to openly discuss threats to the judiciary and to reclaim public trust in the constitutional institution.

The letter, which spans seven pages and has been reviewed by Dawn, was written in the context of the government’s efforts to pass the 27th Constitutional Amendment. The amendment, already approved by the Senate, proposes significant changes to several articles concerning the judiciary and military leadership, and has drawn criticism from members of the judiciary who fear it could undermine judicial independence.

Justice Minallah said that the missive was a “solemn duty to the Constitution” and intended to record for future generations how public confidence in the judiciary was being eroded.

“Institutions are not built overnight, but they can be destroyed in no time through fear, surrender, or submission to the powers,” he wrote, emphasizing that the judiciary’s history is not unblemished, but past failings cannot justify its continued capture to serve the interests of entrenched elites.

The judge highlighted that his duty as a sitting Supreme Court judge compels him to speak out against 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,” he wrote.

Justice Minallah further explained that the truth about the judiciary’s functioning has often been concealed from the public.

He noted that an alliance between certain state institutions and the entrenched elite, characterized by control, privilege, and impunity, has historically shaped the state’s direction. According to him, the Supreme Court has, by design or omission, sometimes been employed as an instrument to suppress the people’s will rather than protect it.

He also cited historical and contemporary examples of elite capture and judicial complicity. The removal and execution of former Prime Minister Zulfikar Ali Bhutto remains, according to Justice Minallah, “one of the gravest and most unpardonable betrayals of our oath and of the people’s trust.”

He added that the persecution of former Prime Minister Benazir Bhutto, the disqualification of Nawaz Sharif, and the harassment of him and his daughter reflected a continuing pattern of subverting the people’s mandate when elite interests are threatened.

The judge noted that President Asif Ali Zardari and Prime Minister Shehbaz Sharif also experienced similar systemic pressures.

“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,” Justice Minallah wrote.

He also stated that political dissent has been criminalized and that leaders, activists, and even women who refuse to bend are subjected to harassment or inhuman conditions.

Justice Minallah described the judiciary as being at a “perilous crossroads,” arguing that silence in the face of systemic erosion of judicial independence would 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 wrote.

He emphasized that the judiciary’s foremost loyalty lies not in self-preservation or deference to power, but in allegiance to the people and the Constitution.

The judge questioned preparations for housing the proposed Federal Constitutional Court (FCC) within the Federal Shariat Court building prior to parliamentary approval. He asked what justified advance administrative arrangements for a new judicial structure and warned that such moves could compromise judicial independence and invite executive influence over the court.

Justice Minallah’s letter follows similar concerns raised by other senior judges and lawyers. Justice Mansoor Ali Shah, along with several former judges, urged CJP Afridi to summon a full court meeting or a joint convention of constitutional court judges, including high court and Federal Shariat Court judges, to articulate a collective stance on the 27th Constitutional Amendment.

Justice Shah warned that the amendment, if passed without proper judicial consultation, could weaken the judiciary and grant undue power to the executive.

Additionally, a group of senior lawyers, led by Faisal Siddiqi and endorsed by former SC senior puisne judge retired Justice Mushir Alam, former Sindh High Court judge retired Justice Nadeem Akhtar, and other top lawyers, wrote to CJP Afridi requesting a full court meeting.

The letter argued that the proposed FCC does not arise from a genuine reform agenda and warned that the appointment of its judges without constitutional parameters could permanently damage the judiciary.

In his letter, Justice Minallah also lamented the subversion of electoral outcomes and suppression of public opinion under the watch of the apex court.

He noted that dissenting voices have been silenced, journalists intimidated or abducted, and fundamental rights compromised. The judge stressed that the judiciary must act to protect constitutional democracy rather than allow elite capture to persist.

He concluded by urging that a judicial conference be convened to allow open discussion among all judges of the Supreme Court and high courts. This, he wrote, would enable the judiciary to reflect on the state of the institution, address threats to independence, and outline steps necessary to reclaim public trust.

Justice Minallah stressed that Parliament should consider the judiciary’s perspective through such a conference before taking any steps to amend the Constitution.

The correspondence from Justice Minallah and other judicial figures signals growing unease within Pakistan’s judiciary over executive interference and proposed constitutional changes. The letters underscore a call for transparency, institutional introspection, and the protection of fundamental rights in order to preserve the judiciary’s credibility and independence in the eyes of the public.