ISLAMABAD:
Public discord among Supreme Court justices has intensified following the passage of the 26th Constitutional Amendment, raising concerns that growing divisions could further undermine the authority and independence of the country’s highest court.
On Tuesday, a heated exchange between two members of the Constitutional Court, Justice Jamal Khan Mandokhail and Justice Ayesha Malik, laid bare simmering tensions within the apex court during the hearing of the 26th Amendment case.
The disagreement centered on the approval of the Supreme Court Rules, 2025. Justice Ayesha Malik was among the four judges who opposed the rules being approved by circulation, while Justice Mandokhail insisted that the rules were duly approved in a full court meeting.
Observers say such public displays of discord among judges have eroded institutional cohesion and tarnished the moral authority of the judiciary.
Following the restoration of the judiciary in March 2009, the apex court had enjoyed unprecedented unity under then Chief Justice Iftikhar Muhammad Chaudhry, emerging as one of the most powerful institutions in the country.
However, that unity began to fracture during former CJP Mian Saqib Nisar’s tenure, when a nasty confrontation broke out at the Peshawar SC Registry after Saqib Nisar abruptly dissolved a bench mid-hearing, excluding Justice Qazi Faez Isa without his consent.
Subsequent Chief Justices Gulzar Ahmed and Umar Ata Bandial also presided over courts where visible divisions persisted, culminating in even more acute internal conflicts during the tenure of former CJP Qazi Faez Isa.
Legal analysts argue that the executive branch took advantage of these divisions and finally introduced the 26th Constitutional Amendment last year, a measure widely seen as an attempt to curb judicial independence and subject the judiciary to stricter executive control.
Since the passage of the amendment, no concerted effort has been made to restore judicial autonomy. Judges who resist executive influence are said to have been marginalized, deepening the sense of internal polarization.
Senior lawyers are now pointing the finger at Chief Justice Yahya Afridi, arguing that the current situation is due to his inability to act decisively. They maintain that if petitions challenging the 26th Amendment had been prepared in time for hearing, the judiciary could have avoided its current situation.
They also say that instead of passing SC Rules 2025 through circulation, the CJP could have called a full court meeting to maintain transparency and unity.
Former Additional Solicitor General Tariq Mahmood Khokhar said the 26th Amendment “has inevitably given rise to two factions within the Supreme Court, one resisting executive dominance and the other eager to collaborate.”
“In such a situation, conflict within an institution is inherent,” he observed.
“The robe has fallen. The inherent flaw in the 26th Constitutional Amendment is now exposed before the nation. The public clash between two judges in open court is not a matter of personal grudge; it is the external symptom of a deeper institutional struggle over who defines Pakistan’s constitutional order.”
“In ultimate irony,” he continued, “the battlefield was the ‘Constitutional Bank’ itself – a creation of a non-representative legislature, conceived and designed not for reform but for control. Its function was to substitute flexibility for independence.”
Khokhar further warned that “whatever the final outcome, the political and constitutional cost is already evident: an increasingly weakened judiciary in the face of an increasingly powerful executive. The judiciary, in effect, is subordinate to an unelected executive. Today the Supreme Court is divided not on questions of law but on tests of loyalty.”
He argued that while the amendment was formulated in the name of judicial reform, its “real purpose was the consolidation of influence. The composition of the Constitutional Chamber reflected preference, not principle. Independence was displaced by compliance. Only one or two token dissents were allowed to preserve the illusion of plurality.”
Khokhar noted that the events now unfolding in open court are a direct consequence of the 26th Amendment, which he said created a two-tier judiciary: one tilted towards the executive and the other towards independence.
