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Authoritarianism, Judicial Independence, and the Struggle to Reclaim Democracy

Justice (R) Syed Mansoor Ali Shah

Distinguished Chair in Constitutionalism & Justice, LUMS

Oscar M. Ruebhausen Fellow, Yale Law School 2026

Former Senior Puisne Judge, Supreme Court of Pakistan

Keynote Address · 2026 Bernstein Symposium

Schell Center for International Human Rights, Yale Law School

Sterling Memorial Library · New Haven, CT · April 10, 2026

Judicial Resilience, Legal Empowerment, and the Struggle Against Autocracy

Justice (R) Syed Mansoor Ali Shah

Distinguished Chair in Constitutionalism & Justice, LUMS

Oscar M. Ruebhausen Fellow, Yale Law School 2026

NYU Research Symposium on Legal Empowerment & Autocracy

Accra, Ghana  ·  March 2026

ABSTRACT

This address, delivered at the NYU Research Symposium on Legal Empowerment & Autocracy in Accra, Ghana, in March 2026, examines why judicial independence collapses under autocracy and what legal, institutional, and cultural resources are required to resist that collapse. Drawing on the author’s resignation from the Supreme Court of Pakistan following the 26th and 27th Constitutional Amendments—which dismantled judicial independence through formally democratic procedures—the speech argues that 21st-century autocracy operates not by abolishing constitutional forms but by hollowing them from within, a phenomenon the literature identifies as autocratic legalism.

The address distinguishes formal from substantive democracy, drawing on Aharon Barak’s jurisprudence and the African constitutional tradition articulated by Dean Atuguba, to argue that substantive democracy—grounded in dignity, equality, and the welfare of all citizens as a duty of the state—is structurally incompatible with autocratic governance. It then presents a comparative study of Ghana and Pakistan: two post-colonial states sharing a common legal inheritance that produced radically divergent outcomes in judicial resilience. Ghana’s judiciary, forged in the aftermath of the 1982 murder of three High Court judges, developed the institutional identity, professional solidarity, and constitutional culture necessary to hold. Pakistan’s judiciary, conditioned by a colonial culture of institutional apoliticism, repeatedly capitulated—validating successive military interventions through an expanding doctrine of necessity.

Drawing on Lisa Hilbink’s study of Chilean judges under Pinochet and Lawrence Baum’s audience theory, the speech identifies four drivers of judicial capitulation: fear, comfort, isolation, and—most critically—a professional culture that frames constitutional guardianship as impermissible political action. It argues that judicial independence is not a character trait but an institutional condition, and proposes a six-dimensional framework for legal empowerment of the constitutional court: doctrinal empowerment (including the basic structure doctrine), structural empowerment, professional empowerment through mobilised bar associations, epistemic empowerment through reformed legal education, democratic empowerment through an activated citizenry, and a selection imperative that prioritises demonstrated constitutional character over technical competence alone.

The address further argues that the culture of resistance—poetry, literature, music, and art—is not supplementary to but constitutive of the moral imagination required to sustain legal resistance under autocracy. Drawing on figures from Faiz Ahmed Faiz to Steve Biko, from Pablo Neruda to Ngũgĩ wa Thiong’o, it proposes that the formation of constitutional court judges should include immersion in the global tradition of resistance. The speech concludes with a defence of principled resignation as a form of constitutional resistance, grounded in the moral philosophy of Dworkin, Fuller, Arendt, and Radbruch, and offers an eight-point roadmap for rebuilding judicial resilience: reforming legal education, redesigning judicial selection, protecting bar associations, maintaining strategic litigation under captured courts, building international solidarity networks, and sustaining the cultural foundations of democratic conviction.

Keywords: judicial independence, autocratic legalism, constitutional courts, legal empowerment, democratic resilience, judicial capitulation, basic structure doctrine, bar associations, culture of resistance, Pakistan, Ghana

Opening: Democracy, Autocracy, and the Room We Are In

Honourable colleagues, distinguished scholars, friends —

We gather in a country whose first President, Kwame Nkrumah, warned the world with words that grow more urgent with every passing decade: ‘We prefer self-government with danger to servitude in tranquillity.’ That sentence is a constitutional philosophy compressed to its essence. It rejects the bargain that autocracy always offers — the trade of freedom for safety, of dignity for order, of the people’s sovereignty for the ruler’s stability. Nkrumah understood that tranquillity purchased at the price of servitude is not peace. It is submission dressed as governance. We are here, in this room, because we refuse that bargain.

There is a saying in the Akan tradition of this land: Ti koro nko agyina — one head does not go to council. Wisdom requires plurality. Legitimacy requires participation. Authoritarianism is the alien imposition. Democracy is the grain of human experience. I begin there because the most persistent lie of autocracy is that it represents something natural — that strongmen, silenced courts, and managed elections are what societies produce when left to themselves. They are not. They are what happens when institutions designed to prevent them are captured, hollowed, or frightened into compliance.

I speak today as someone who resigned from the Supreme Court of Pakistan on 13 November 2025, because I could no longer uphold an oath to protect a Constitution from within a court that had been stripped of the authority to protect it. The Varieties of Democracy project tells us that autocracies now outnumber democracies in the world for the first time in twenty years — 91 to 88. The global average level of democracy has receded to where it stood in 1985. Freedom is in retreat, and those retreating are retreating faster than those advancing. This room — this symposium on legal empowerment and autocracy — is exactly where the counter-strategy must be built.

The question is not whether autocracy will attempt to capture the judiciary. It always does. The question is whether — and how — the people and the judges can be empowered to resist.

I.  What Democracy Is — And What It Is Not

Before we can understand what is being destroyed when autocracy captures a court, we need to be precise about what democracy is. Because it is precisely this imprecision that autocrats exploit.

Formal democracy is architecture. Elections held on schedule. Constitutions passed and promulgated. Parliaments assembled and dissolved. Courts sitting and delivering judgments. Flags flying, anthems sung, ballots cast. Autocrats have learned — and this is one of the defining features of 21st-century authoritarianism — to maintain all of this while destroying everything it was supposed to protect. The 26th and 27th Constitutional Amendments in Pakistan were passed by a two-thirds majority of parliament. Formally, they were constitutional acts. Substantively, they were the destruction of the Constitution. This is autocratic legalism at its most sophisticated: using the forms of democracy to hollow out its content.

Substantive democracy is something else entirely. Aharon Barak, a great jurist, made this distinction with precision. Formal democracy, he wrote, asks only: was the decision made by the correct procedures? Substantive democracy asks a harder question: does the decision respect the dignity and rights of every person, including those who did not vote for the majority? For Barak, the judge in a democracy is not the servant of the majority. He is the guardian of the values that make majority rule legitimate — human dignity, equality, the rule of law, the protection of minorities. A court that validates whatever the parliament enacts is not a democratic court. It is a rubber stamp. And a constitution that can be amended away — including its own provisions for judicial independence — is not a constitution in any meaningful sense. It is theatre.

Dean Atuguba, in his opening address to this symposium, deepened this insight from an African perspective. The real distinction, he argued, is not between Western and African democracy, but between formal and substantive democracy — and he is right. Formal democracy starts at the top and stays there. Substantive democracy must begin where it must actually live: with people, their necessities, their dignity, their ownership of the law. Ghana’s Constitution states it with remarkable clarity: the most secure democracy is the one that assures for its people the basic necessities of life as a fundamental duty of the state. Not charity. Not election promise. Duty. And this is the constitutional vision that autocracy structurally cannot fulfil — because fulfilling it would require dismantling the patronage networks by which autocracy sustains itself. The autocrat can hold an election. He cannot guarantee dignity as a duty. That is his deepest vulnerability.

Formal democracy is the architecture. Substantive democracy is the life inside it. And autocracy’s greatest trick is to preserve the architecture while destroying the life.

II.  What Autocracy Sells — And Why It Always Fails

Autocracy does not come announcing itself as tyranny. It comes with a promise. Stability, where there was chaos. Efficiency, where there was gridlock. Security, where there were threats. National pride, where there was humiliation. Anti-corruption, where there was venality. These are real promises that answer real frustrations. And for a time — sometimes a long time — they can appear to be kept. This is why autocracy is seductive, and why its seductiveness must be named and answered.

But the promises carry within them the seeds of their own failure. Autocracy destroys the information systems that good governance requires. When courts cannot hold the executive accountable, when media cannot report freely, when academics cannot research critically, the regime becomes blind. It makes increasingly bad decisions on the basis of increasingly distorted information — until the accumulation of failures becomes too large to conceal. Autocracy also corrodes the rule of law on which economic life depends. Sustainable development requires that contracts are enforced impartially, that property rights are secure regardless of political connection, that investment is not subject to the whims of a patron. Autocracy replaces all of this with patronage networks — and patronage networks exhaust themselves. And autocracy faces a legitimacy deficit that grows over time, because even the most sophisticated autocracy depends ultimately on popular acquiescence — and acquiescence erodes, fastest among the young, as the gap between promise and delivery becomes undeniable.

But there is a dimension of autocratic failure that is less discussed and more insidious: the elitist society it creates and entrenches. Autocracy does not merely concentrate political power. It concentrates social power — building elite networks of patronage, privilege, and preferential access that penetrate every layer of society. The elite that forms around an autocratic regime is not simply a political class. It becomes a culture. A way of doing business. A code of social navigation in which connection matters more than merit, proximity to power matters more than principle, and the ordinary citizen — without the right networks, without the right names, without access to the right rooms — finds the system arrayed against her at every turn. This elitist culture seeps downward. It does not stay confined to the palaces and the ministries. It reaches the courtrooms. It reaches the offices where permits are issued and contracts are awarded and promotions are decided. And it reaches the lower courts — not only because those courts are supervised by captured constitutional courts above them, but because the patronage culture itself distorts justice at every level. A litigant with elite connections finds that justice tilts in her direction. A litigant without them finds that the law, nominally available to all, is in practice available to those who can reach the people who control it. The claim that autocracy preserves justice in ordinary matters — that frontline courts continue to function independently even while constitutional courts are captured — is wrong on both counts. Justice in ordinary matters is compromised by the same elitist structures that compromise constitutional adjudication. The disease is the same. Only the symptoms differ.

But the deepest failure of autocracy is that it cannot meet the test of substantive democracy. It cannot guarantee dignity as a duty. It can distribute welfare as a gift — selectively, to those whose loyalty it needs. But it cannot commit to the welfare of all, because the welfare of all would require equality before the law, and equality before the law would destroy the system of selective privilege by which the regime survives. Every autocracy, eventually, fails this test. The question is only at what cost, and over what timeframe, and whether the institutions and the culture of democratic life survive to receive the inheritance.

III.  Two Stories: Ghana and Pakistan

We are sitting in Ghana, so let us begin here, with the darkest moment — because the darkness is what makes the light comprehensible.

On 30 June 1982, three High Court judges were abducted from their homes by soldiers acting under the Rawlings regime. Justice Kwadwo Agyei Agyepong. Justice Fred Poku Sarkodie. Justice Cecilia Koranteng-Addow — the first woman ever to serve on Ghana’s High Court bench. Their bodies were found the next morning. They had been executed. They had done nothing except what judges are supposed to do: sit, hear, and decide. They were killed for wearing the wig and gown. The message was: this is what independence costs. Comply, or this happens to you.

The regime expected submission. What followed was the opposite. Those murders became a founding wound — and wounds of that kind, when a profession absorbs them honestly, become moral armour. Every subsequent Ghanaian judge carried those three names. When asked, under pressure, under inducement, under threat: what are you willing to risk for this? — the answer had a shape. A constitutional philosophy had already taken root — that a constitution is a living organism, not a dead letter in the hands of whoever holds power today. That philosophy was embedded in a new constitution in 1992, tested in the courts, and proved in a moment of extraordinary democratic clarity: a bitterly contested presidential election resolved through open court proceedings, a closely divided judgment, and a losing candidate who stood before the nation and said: I disagree with this verdict and I accept it. Two peaceful transfers of power. Courts that held.

Three principles explain why Ghana held. The first is institutional identity — judges who understood their professional self as rooted in law, not in proximity to power. The second is solidarity — bar and bench acting as one organism. When parallel tribunals were created to bypass regular courts, Ghana’s bar forbade its members from sitting on them. That act of collective professional self-definition, at real personal cost, preserved the line between a court and an instrument of state. The third, and deepest, is constitutional culture — a polity that treated the Constitution as something that belonged to the people. When citizens believe the Constitution is theirs, they defend it.

Pakistan tells the other story — same colonial legal inheritance, same constitutional architecture, radically different choices. Within years of independence, the judiciary faced its first fundamental test. It chose accommodation. Each capitulation made the next one easier. Military takeover after military takeover was validated by the courts through an ever-expanding doctrine of necessity — the judicial endorsement of successful violence, dressed in legal language. The pattern repeated across decades: the generals came, the courts found reasons to say yes, and the constitutional order was fractured a little more each time. A moment of recovery did come — a unanimous bench formally buried the doctrine of necessity, declaring that no extra-constitutional seizure of power could ever again be judicially validated. For a brief period, Pakistan had a genuinely independent judiciary. What 2024 represents is the deliberate destruction of that recovery — not through a coup but through constitutional engineering: amendments passed at midnight under coercion, stripping the court of jurisdiction, redesigning appointments, dismantling independence from the inside while keeping the architecture intact.

Two countries. Same inheritance. Two destinies. The question is not just historical. It is the question that shapes everything that follows: why did one judiciary hold and the other bend? And what must we build — in law, in institutions, and in the human beings who staff them — to make holding more likely than bending?

IV.  Why Judges Give In — The Anatomy of Judicial Capitulation

Let me now turn to the question that is the spine of this speech: why do judges give in? Why do men and women who took an oath to the Constitution, who trained in law, who in many cases privately oppose the regime — why do they accommodate power, validate coups, rubber-stamp constitutional dismantlement?

The first answer is fear. A judge who refuses to validate a coup faces dismissal, detention, and the destruction of a professional life built over decades. In Pakistan in 1977, when Zia’s Provisional Constitutional Order required judges to take new oaths, those who refused were immediately removed. Personal courage under those conditions is real, but it is not costless — and it cannot be institutionally mandated without structural protection.

The second answer is comfort. Beyond fear — and I say this with deliberate candour, because the critique is not merely academic for me — much of the judicial accommodation in Pakistan’s history was not about survival under duress. It was about comfort. About not wanting to give up the position, the title, the salary, the official car, the deference of the courtroom. About calculating, often at a subconscious level, that the cost of principle is too high. A judge who validates a military regime does not typically do so in terror. He does so in a quiet office, with time to think, assisted by lawyers who can construct any rationale required.

The third answer is isolation. Judges who operate without institutional support — without security of tenure, without a professional community willing to defend them, without an audience that values their independence — are rationally calculating their exposure. They are alone. And isolated judges do not hold for long.

But the fourth answer — identified by Lisa Hilbink in her landmark study of Chilean judges under Pinochet — is the deepest, and the most disturbing. She calls it institutionalised apoliticism: a professional culture that trains judges to experience constitutional guardianship as impermissible political action. Judges appointed under democratic governments, sworn to the constitution, privately opposed to Pinochet — they collaborated not because they were coerced or sympathetic, but because the professional culture defined resistance as unprofessional. Colonial common law judiciaries were built to administer, not to govern; to apply, not to scrutinise. The doctrine of necessity in Pakistan was not a corruption of judicial culture. It was its expression. The judge who validates a coup does not feel he is betraying the Constitution. He feels he is doing his job.

Lawrence Baum’s audience theory makes the mechanism precise: judges seek esteem from the audiences that matter to their careers. In a captured court, the dominant audience is the regime. Appointment, promotion, confirmation, reputation — all flow from the regime and its affiliated elites. You cannot build an independent judiciary by appealing to individual courage alone. You must change the audience — make the bar, the academy, civil society, and the public into audiences whose approval matters more to a judge than the executive’s. That is what Ghana’s bar did when it refused to sit on bypass tribunals. That is what Pakistan’s lawyers’ movement did in 2007, when eighty thousand lawyers united to demand the restoration of an independent Chief Justice. And that is what was deliberately destroyed in Pakistan in 2024, when bar leadership was co-opted through land grants and judicial appointment promises — neutralising the very audience that had made judicial resistance possible.

Judicial independence is not a character trait. It is an institutional condition. Build the condition — and judges can hold. Destroy it — and even courageous judges cannot stand for long.

V.  Legal Empowerment: People, Courts, and the Two Dimensions

This symposium is organised around the concept of legal empowerment. I want to define it precisely — because it is doing two different kinds of work in our conversation, and the difference matters enormously for what we build.

The first dimension is legal empowerment to strengthen democracy. This is the project that Dean Atuguba described so powerfully: paralegals in rural communities, administrative justice officers, public interest litigators, citizens who discover that the law can work for them rather than against them. The CHRAJ officer in Walewale who listened, mediated, explained rights, and slowly built trust — that is legal empowerment in its most fundamental form. It builds democratic culture from below. It gives substantive democracy its roots. And it is precisely what formal democratic architecture cannot do on its own.

But the second dimension is different, and it is the one this speech addresses: legal empowerment to resist autocracy. This operates in a fundamentally different context — not the imperfect state that tolerates rights-assertion in ordinary matters, but the state that has become actively hostile to constitutional order. Here the challenge is not deepening democracy but resisting its destruction. And for this project, we must be precise about which court is the frontline.

In the context of resisting autocracy, the constitutional court is the frontline court. This is not a semantic point. It is an institutional one. When a challenge to autocracy must be mounted in the first instance — when a citizen or a political force or a bar association seeks to contest the constitutionality of an autocratic act — it is the constitutional court that must hear that challenge first. The constitutional court takes the case where it matters: at the level of fundamental law, of constitutional structure, of the rights that no ordinary majority can abolish. That is the frontline of resistance. And it is a frontline that regular trial courts and magistrates’ courts, however capable, are structurally unable to hold — not because they lack courage but because they lack jurisdiction. A magistrate cannot strike down a constitutional amendment. A trial court cannot refuse to validate a Presidential Ordinance on the grounds that it violates the basic structure doctrine. Only the constitutional court can do that.

Autocracy understands this perfectly, which is why it captures the constitutional court first. Every court below the constitutional court is supervised by it, promoted by it, professionally shaped by it. A district judge who might otherwise resist executive overreach will not act against a captured apex. His career, his promotions, his professional standing all flow from above. When the apex goes, the entire system goes with it — not necessarily because judges below agree with the capture, but because the hierarchy makes independent action below professionally suicidal and practically futile. There is no example in modern constitutional history of a frontline trial court successfully resisting an authoritarian regime whose constitutional court has been captured. None. The Pakistani lawyers’ movement in 2007 succeeded because it fought to restore the apex.

This does not diminish the importance of grassroots legal empowerment — it is indispensable for democratic deepening. But when the question is resisting autocracy, legal empowerment must be targeted, with precision and priority, at the constitutional court. It is the gatekeeper. Empower it, and you create the condition of possibility for resistance throughout the system. Leave it captured, and no amount of legal empowerment below compensates.

So what does legal empowerment of the constitutional court require? Five dimensions. Doctrinal empowerment: the court must have legal tools adequate to the challenge — the basic structure doctrine being the paradigm, giving a court constitutional authority to refuse an amendment that destroys judicial independence, rather than being forced to validate it as formally lawful. Structural empowerment: security of tenure, financial independence, random case allocation, appointment processes insulated from the executive. Professional empowerment: a mobilised bar and active academic community — the countervailing audiences whose esteem matters more to judges than the regime’s approval. Epistemic empowerment: legal education that equips judges to recognise and refuse the Hilbink trap — the professional culture that tells them resistance is unprofessional. And democratic empowerment: an activated citizenry that makes the political cost of capturing courts visible and real.

But I want to add a sixth dimension — the one that precedes and animates all the others, and the one most absent from conventional reform agendas. I call it the selection imperative. We must stop selecting constitutional court judges solely for technical competence and begin selecting also for demonstrated constitutional character — for the willingness, shown under cost, to stand for something. The judge who has been publicly silent when silence was convenient, who has built a career by not making enemies of the powerful, who has never taken a position that cost him anything — that judge, however brilliant, has not yet demonstrated what a constitutional court requires. The selection process must find the lawyers who have shown, in their professional lives, a deep commitment to constitutional values. Public interest lawyers. Academics who have written the difficult things. Bar leaders who refused co-optation when co-optation was offered. These are the people who carry in their professional history the evidence of constitutional character.

And even with all six dimensions in place — even with the best-selected, best-supported, most doctrinally equipped constitutional court — there will be times when the court is captured and the people must keep going without institutional relief. This is where legal empowerment takes its most demanding form. File the cases anyway. Approach the captured constitutional court. Force it to say no in writing, with reasons, on the public record. A captured court that must repeatedly explain in written judgments why it is ruling for the executive is doing something different from a captured court that faces no challenges at all. The refusals accumulate. They become the historical record — the brief for the court that will one day review what happened. Strategic litigation under autocracy is not primarily about winning cases. It is about maintaining the practice of law as resistance, and building the documentation of injustice for the restoration that will come.

Legal empowerment is not only a strategy for democratic times. It is the discipline of resistance in dark ones — keeping the claim alive, the record intact, the institution from dying in the hearts of the people.

VI.  The Engine of Resistance: Culture, Art, and the Moral Imagination

But what sustains the people through those dark times? What keeps them filing cases they know will fail, approaching courts they know are captured, maintaining the practice of resistance when every formal channel has been closed? The conventional answer is more legal training, better institutional design, stronger international support. These matter. But they are not the answer to this question. The answer is culture.

Poetry, music, art, and literature are the engine of resistance. Law is the mechanism through which resistance expresses itself institutionally. The engine provides the energy — the conviction, the imagination, the moral certainty that makes people willing to keep going when winning feels impossible. The mechanism provides the form through which that energy is channelled into something with legal force and historical permanence. Without the engine, the mechanism runs dry. You can design the perfect legal empowerment strategy, but if the people have lost the moral imagination to believe that a different order is possible, the strategy has no fuel. Without the mechanism, the engine burns without direction — the moral outrage exists, but it has no form through which to become constitutional change.

This truth has been understood, in every era and on every continent, by the people who refused to accept that the world could not be different. In Pakistan, Faiz Ahmed Faiz wrote from prison — Bol, ke lab azaad hain tere, Speak, for your lips are free — and his collections were banned not because they were beautiful but because they were evidence: proof that resistance had existed, that obedience was a choice. Habib Jalib stood in public squares knowing arrest was possible. Ahmad Faraz gave language to a resignation letter written not in defeat but in defiance. In South Africa, the anti-apartheid cultural movement — the songs of Miriam Makeba, the theatre of Athol Fugard, the testimony of Steve Biko that the most potent weapon in the hands of the oppressor is the mind of the oppressed — sustained the moral imagination of a people through decades of systematic dehumanisation. Biko understood that before the law could be reclaimed, the mind had to be liberated. In Latin America, Pablo Neruda wrote odes to the dignity of ordinary people from prison and exile. Victor Jara sang until the junta silenced him in the Estadio Chile in 1973 — and his songs outlasted the regime that killed him. Mario Benedetti, writing from exile after Uruguay’s dictatorship, turned the experience of displacement into a literature of return — the conviction that exile is not defeat, that resistance continues, that the homeland of justice is always worth going back to. In Nigeria, Wole Soyinka was imprisoned and wrote poems on toilet paper that were smuggled out of prison. In Kenya, Ngugi wa Thiong’o was detained without trial and responded by writing his next novel — in prison, on toilet paper, in Gikuyu — because the act of writing in his mother tongue was itself an act of cultural and political resistance. Across this continent and across Latin America, the lesson is the same: the culture of resistance is not supplementary to the constitutional struggle. It is the oxygen without which the constitutional struggle cannot breathe.

This leads me to a proposition I offer to this symposium as a research agenda: the formation of constitutional court judges should include immersion in the global culture of resistance — not the resistance of their own country only, but this tradition in its full breadth. The judge who carries Biko’s words in his memory knows that the mind must be liberated before the institution can be. The judge who has read Neruda knows that the law’s promise of dignity is not an abstraction — it is the stuff of ordinary human life, worth defending with one’s whole self. The judge who understands that Jara sang until they broke his hands carries a different kind of constitutional conviction than the judge who was trained only in precedent and procedure. We must build judiciaries — and legal cultures — in which constitutional commitment is a matter of identity, not just qualification. Where the failure to defend the Constitution is experienced as a personal betrayal, not a professional calculation. Where the judge knows, from the tradition he has absorbed, that he is part of a long line of people who chose law over power — and who paid for that choice, and did not regret it.

The Constitution is only as strong as the people who believe in it enough to defend it — in the courtroom, in the public square, and in the poem written in prison at midnight.

VII.  The Last Form of Resistance: Resignation and Why It Matters

I want to speak now about the specific form of resistance that I chose — and why I believe the scholarly literature, and the weight of moral philosophy, supports it as not merely permissible but, in certain circumstances, required.

The 27th Amendment dismantled the Supreme Court, creating a Federal Constitutional Court with handpicked judges above it, stripping the apex of constitutional jurisdiction. The court that had stood since 1948 was reduced to an appellate shell. I resigned on 13 November 2025 — together with Justice Athar Minallah — because staying would have been complicity.

I want to address the argument that staying was the responsible choice. That a diminished bench is better than an empty one. That institutional capital is preserved by remaining. Alexander Bickel — one of the great constitutional scholars of the 20th century — called this the passive virtues: strategic restraint, the conservation of institutional legitimacy for battles that can be won. It sounds like wisdom. It is not.

Ronald Dworkin spent much of his career explaining why. Law is not a set of rules that a judge administers from a position of professional detachment. It is a practice of integrity — a moral commitment to treating every person with equal concern and respect. A judge who sits in a court stripped of the authority to examine constitutional violations is not preserving an institution. He is lending his presence to the shell of one — providing organised coercion with the moral authority of a legal imprimatur. Lon Fuller was precise: a court constitutionally prohibited from examining constitutional violations is not congruent with the idea of a court at all. Hannah Arendt showed us the deeper danger: the banality of evil is not the monster but the functionary who processes his files, follows his procedures, and tells himself the responsibility lies elsewhere. Gustav Radbruch drew the final lesson from the Nazi period: when positive law reaches a degree of injustice that contradicts the foundations of the rule of law, it loses its claim to legal validity and must be refused. A judge who sits in the institution such law creates does not uphold law. He provides oppression with a legal signature.

And practically: what does resignation accomplish when the court will be packed regardless? Five things — each concrete. The visible vacancy is a living argument: a bench where honest judges used to sit is more obviously illegitimate than one that absorbed its independent members. Those who refused are available, uncompromised, when restoration comes — and those who stayed are permanently marked by what they accommodated. The resignation letter is a constitutional brief the autocrat cannot seal: documentation of every violation, a record for the court that will one day examine what happened here. International accountability is activated by documented principled resistance in ways it cannot be activated by quiet compliance. And the moral example tells every law student and junior lawyer that the values did not dissolve when the institution was captured. They survived in the people who refused to go along.

The court was dismantled by constitutional amendment. What remained needed to be named for what it was. Resignation was not abandonment. It was the final, unambiguous act of telling the truth about what had been done.

VIII.  The Roadmap: What We Must Build

Let me close not with despair but with a programme. Because the purpose of this symposium is not to document failure but to build resistance. Here is what I believe the roadmap requires — a guide for people, lawyers, judges, and institutions who refuse to accept autocracy as permanent.

First: rebuild legal education as democratic education. Law schools must stop producing technically excellent servants of power and start producing constitutionally grounded democratic citizens. That means political philosophy, constitutional history, the sociology of judicial capture — as core curriculum, not elective enrichment. And it means immersing future judges and lawyers in the cultural tradition of resistance: the poetry, the art, the music of those who refused. The lawyer who has never been moved by poetry will not be moved by a constitutional argument at two in the morning when staying silent is so much easier.

Second: redesign the selection of constitutional court judges. Stop selecting only for technical brilliance. Select for demonstrated constitutional character — for the lawyer who took the difficult position, the academic who wrote the honest thing, the bar leader who refused the land grant. Make the willingness to pay a price for principle a qualification, not an eccentricity.

Third: build and protect bar associations as constitutional guardians. Their independence from the state, from political parties, from the establishment, must be structurally protected. Ethical rules must prohibit bar leaders from accepting personal benefits from executives in exchange for political silence. The bar that stays silent when judges are dismantled is not a bar. It is an accessory.

Fourth: maintain collective legal action even when courts are captured. Keep approaching the constitutional court. Keep filing the cases. Force the captured court to say no in writing. Build the record. Document every violation. Strategic litigation under autocracy is not about winning — it is about maintaining the practice of resistance, building the historical brief, keeping the institutional muscles alive for when the political moment changes. And when domestic courts offer no relief, use every international forum available: UN Special Procedures, regional human rights bodies, the International Commission of Jurists. The world is watching, and its watching matters.

Fifth: build international solidarity networks. Autocratic legalism is transnational — the methods are borrowed and shared between regimes. The resistance must be equally transnational. The judges, lawyers, and academics who are resisting — in Pakistan, in Hungary, in Turkey, in every country where the constitutional courts are under attack — deserve solidarity, not just sympathy. Name what is happening. Name it publicly, with precision, in international forums. Autocrats fear being named. They fear the historical record. They fear the moment when the documentation accumulated over years of persistent resistance becomes the evidence in the proceedings of restoration.

Sixth: in the darkness, draw on the culture. When the formal channels are closed, when the courts are captured, when the bar has been co-opted, when the international community has moved on to its next crisis — in those moments, go back to the poems. Go back to the music. Go back to the art of every people that has resisted power and preserved the moral imagination of a different order. That imagination is not a luxury. It is the oxygen of resistance. It is what keeps people filing cases they know will be rejected, writing resignation letters they know will be dismissed, standing in public squares they know are being watched. The culture of resistance is the foundation on which every other form of legal empowerment is built.

And finally: understand that autocracy is not permanent. It is self-defeating — not inevitably in the short run, not without enormous cost, not without the very real risk that the institutions needed for restoration will be damaged beyond recovery before the political moment comes. But structurally, historically, autocracy fails the test of its own promises. The question is always whether enough has been preserved — enough institutional memory, enough professional culture, enough moral imagination — to receive the inheritance of its failure and build something better.

The goal is not merely to survive autocracy. It is to be ready — in law, in institutions, in culture, and in the conviction carried in the human beings who refused to give up — to build what comes after.

Closing: Build What Autocracy Cannot Capture

Ghana demonstrated that courts can hold. Pakistan demonstrated, at enormous cost, what happens when they do not. The difference was not genius or luck. It was the accumulation of choices — by judges, lawyers, citizens, poets — about what was worth defending and what was intolerable to lose.

What does autocracy fear? It fears independent constitutional courts, because those courts have the authority to say no where it counts. It fears legally empowered citizens who keep approaching those courts, building the record, raising the cost of capture. It fears the bar that refuses co-optation. It fears academics who name what is happening. It fears poets and writers, because culture sustains the imagination of a different world in the darkness when every formal channel has been closed. And it fears most of all the citizen — the judge, the lawyer, the student, the person who has internalised, so deeply that it cannot be argued away, that the law belongs to her and that its betrayal is intolerable.

Democratic resilience is not an achievement. It is a practice. And that practice must be grounded not in the formal architecture of democracy but in its substantive core: the dignity of people, the ownership of law, and the conviction — carried in culture as much as in courtrooms — that no head goes to council alone.

The nobility of law lies not in power. It lies in compassion and courage. The law is a civilisational commitment to the proposition that disputes can be resolved through reason rather than force, that the powerful can be held to account, and that the weakest citizen is entitled to the same constitutional protection as the most powerful. When courts abandon that commitment, they abandon the reason for their existence. When they hold it — against pressure, against fear, against the seductions of comfort and convenience — they perform an act that is not merely legal but profoundly human.

On the last page of my resignation letter, I found the only language adequate to that moment — the words of Ahmad Faraz (and I quote):

“My pen is a trust held for my people. My pen is the court of my conscience. I swear by a lifetime of hardships: the journey of my pen will not go to waste.”

Neither will yours. This is the work. Let us begin.

— Justice (R) Syed Mansoor Ali Shah

Accra, Ghana — March 2026

Key Sources & Authorities

Barak, The Judge in a Democracy (Princeton, 2006)  ·  Bickel, The Least Dangerous Branch (1962)  ·  Dworkin, Law’s Empire (Harvard, 1986)  ·  Arendt, Eichmann in Jerusalem (Viking, 1963)  ·  Fuller, The Morality of Law (Yale, 1964)  ·  Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (1946)  ·  Hilbink, Judges Beyond Politics (Cambridge, 2007)  ·  Huq & Ginsburg, 65 UCLA L Rev 78 (2018)  ·  Shen-Bayh, Oxford Handbook of Authoritarian Politics (2024)  ·  Scheppele, 85 U Chicago L Rev 545 (2018)  ·  Jan, Rule by Fear (2021)  ·  Kesavananda Bharati v State of Kerala AIR 1973 SC 1461  ·  Nkrumah, I Speak of Freedom (1961)  ·  Biko, I Write What I Like (1978)  ·  Ngugi wa Thiong’o, Detained: A Writer’s Prison Diary (1981)  ·  Soyinka, The Man Died: Prison Notes (1972)  ·  Neruda, Canto General (1950)  ·  Benedetti, El Olvido está lleno de memoria (1995)  ·  Atuguba, Opening Keynote Address, NYU Research Symposium on Legal Empowerment & Autocracy (Accra, March 2026)  ·  CDD-Ghana, DemCap Report (2025)  ·  V-Dem Democracy Report (2025)  ·  Faiz Ahmed Faiz, Bol  ·  Habib Jalib, Dastoor  ·  Ahmad Faraz, Mera Qalam