KARACHI: Over 300 senior lawyers from across the country have urged judges of the superior judiciary not to become part of any proposed constitutional court even if such a bill is passed by parliament.

In an open letter addressed to the judges of the Supreme Court of Pakistan and the High Courts on Sunday, the senior lawyers stated, “We urge you — the judges of our constitutional courts — not to recognise this proposed court if such a bill is passed.”

“We urge those of you who may be hand-picked to serve on it, not to do so. Complicity will be no defence of the Constitution; it will be its defacement,” the letter stated.

The signatories include senior lawyers Munir Ahmed Khan Kakar, Abid Saqi, Riasat Ali Azad, Abid Hassan Minto, Bilal Hassan Minto, Salahuddin Ahmed, Afzal Harifal, Abdul Moiz Jaferii, Mohammad Jibran Nasir and others.

“Our higher judiciary has, for many decades now, lent legitimacy to a sustained assault on our Constitution and on our democracy. We remember the pen that first carved necessity on the tombstone of our first Constituent Assembly. We remember all the times, since, that it prevented an elected government from completing its term. We remember, also, the last time a PCO was upheld.”

The lawyers were of the opinion that there was no difference between a PCO (Provisional Constitution Order) court and the proposed constitutional court.

The letter stated, “We see the proposed court as no different; it will be a PCO court, and those who take the oath to serve on it will be PCO judges. But we also remember how you, yourselves, corrected history by overturning that same decision. Indeed, we recall all this, especially because your own judgments now recount how our courts failed us. This moment offers you a choice. The very fact that an attempt is being made to mutilate our courts speaks to the reality that — today — you are not yet on the wrong side of history. And so, we urge you: do not yield. When today’s history is recorded in tomorrow’s judgments, let it say that you were not complicit,” it added.

It mentioned that the draft of the proposed amendments was introduced under the cover of darkness. “An assault on our Constitutional compact is being cloaked in the thin garb of arguments grounded in the supremacy of law. These are arguments that do not withstand the slightest intellectual scrutiny, given any serious consideration. Behind ill-considered references to foreign jurisdictions, and critiques of the judicial system that this amendment cannot actually fix, is a plain proposal,” the letter claimed.

“Judges of the high courts are to be controlled, the Supreme Court is to be amputated, and its served limb replaced with loyalists handpicked by those who always wielded power,” it alleged, declaring that the lawyers refuse to engage, in good faith, with any such ideas because they were not ideas rotted in good faith.

A week ago, the Pakistan Bar Council (PBC), as well as the bar councils and associations from Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan were unanimous about the competence of parliament to bring a constitutional amendment, they had reservations over any changes being made to the basic structure of the Constitution.

Earlier, practising lawyers of the apex court and other high courts have also shared their concern in their open letter regarding the “potential violations” of judicial independence and constitutional principles.

The letter goes on to state that the proposal to allow the transfer of high court judges from one province to another was a mala fide attempt to further subvert not only judicial independence but also provincial autonomy.

Last week, speaking on the Dawn News programme ‘Doosra Rukh with Nadir Guramani’, the legal adviser Barrister Aqeel Malik had said that they will convene a National Assembly session in the first week of October to present and seek approval for the controversial “Constitutional Package”.

Published in Dawn, September 30th, 2024