A six-member bench of the Supreme Court of Pakistan, presided over by the Honourable Mr Justice Jamal Khan Mandokhel, in Nazar Abbas v The State, has delivered a pivotal ruling affirming the exclusive jurisdiction of the Supreme Judicial Council (SJC) in matters concerning the conduct of judges of the superior judiciary—that is, the Supreme Court, High Courts, and the Federal Shariat Court. The judgment clarifies that while notices may be issued to these judges under Article 204 of the Constitution of Pakistan, 1973, and under the Contempt of Court Ordinance, 2003, disciplinary proceedings fall solely within the domain of the SJC.
This judgment appears to offer much-needed clarity in the midst of a growing institutional dispute within the judiciary. It also refers to the phrase “Esprit de Corps”, referring to a shared spirit or solidarity among members of a group, warning that failure to uphold this unity can have detrimental effects on judicial harmony. While the principle is intellectually appealing, its application in this context is subject to further debate.
Before delving deeper into the implications of the ruling, several critical questions must be raised: What is the background and genesis of this institutional crisis? What is the contextual basis for introducing the 26th Constitutional Amendment? In a constitutional democracy governed by a written constitution, which organ of the State holds ultimate authority? What is the apparent prima facie mala fide intent behind Article 191A(5), which mandates the forthwith transfer of pending cases?
The judgment rightly recognises the judiciary as a cornerstone of democratic governance. However, it does not sufficiently underscore the limited supremacy of Parliament in a system governed by a written constitution, where constitutional supremacy overrides the will of any individual organ of the State. A foundational feature of the Constitution of Pakistan is the independence of the judiciary, which must be protected against interference—whether from the executive, the legislature, or even from internal institutional power struggles.
This principle holds particular importance in Pakistan’s context, where, unlike the United Kingdom's parliamentary supremacy under an unwritten constitution, no single organ of the State can claim unqualified supremacy. Ironically, the judgment does not adequately emphasise this distinction. Though the Court recommended that the legislature consider appropriate legislation, this should not be construed as legislative supremacy; rather, it reflects the supremacy of the Constitution itself.
The judgment’s emphasis on maintaining “a high degree of comity amongst judges” raises important questions. The current crisis stems from the fact that a fundamental feature of the Constitution has been altered, directly impacting the rights of senior judges. Through the controversial 26th Amendment, certain judges were effectively deprived of their opportunity to preside over the Supreme Court and High Courts despite their seniority and merit. Expecting silence from such judges is unrealistic and unjust.
This amendment not only undermines judicial independence but also damages the principle of judicial comity and the very fabric of constitutional democracy in Pakistan
These are not ordinary public servants; they are custodians of constitutional rights, now forced to defend their own rights due to the consequences of legislative overreach. The filing of petitions by Islamabad High Court judges has already drawn both national and international attention. While cooperation and cordial working relationships among the organs of the State are desirable, they cannot come at the cost of justice or judicial independence. If the legislature, in concert with the executive, undermines senior judges through legal mechanisms, it should come as no surprise when those judges raise their voices.
The invocation of “Esprit de Corps” while noble in theory, does not offer a convincing defence when constitutional norms are being breached. A household analogy may help clarify the situation: if one brother introduces an externally motivated idea that disproportionately benefits him, and the others object, it is unfair to accuse them of creating hostility. The burden of justification lies with the instigator, not the dissenters.
Inter alia, one of the most troubling aspects of the 26th Amendment lies in Article 191A(5), which mandates that pending and even partly-heard cases be “forthwith transferred.” This clause appears to be a targeted manoeuvre to strip certain senior judges known for their independent thinking of their judicial authority. These judges have demonstrated a commitment to enforcing constitutional rights, especially those found in Chapter 1, Part II of the Constitution: The Fundamental Rights.
The judgment itself notes that upon the enactment of the 26th Amendment, a wide array of legal matters, including petitions, appeals, and reviews, were automatically transferred. This provision, both in language and spirit, suggests clear mala fide intent. The legislature, perhaps under pressure or influence from segments of the executive, effectively sidelined independent judges. This tactic resembles administrative misconduct, such as when a police officer (e.g., an SHO) is removed from a case for refusing to carry out illegal orders. The executive’s misuse of power in such situations is typically corrected through judicial review. However, when similar tactics are employed against superior court judges, it raises profound concerns about judicial independence and democratic integrity.
This is not merely a domestic legal concern; it is a matter that affects how Pakistan’s democratic structure is perceived globally. If such actions go unchallenged, then claims of democratic governance become questionable at best.
The Supreme Court’s ruling correctly emphasises the need for public confidence in the judiciary. Yet public trust cannot be commanded solely through judgments like this one; it should be earned through consistent action, institutional integrity, and an unwavering commitment to constitutional principles.
The Court should confront the implications of the 26th Amendment head-on. This amendment not only undermines judicial independence but also damages the principle of judicial comity and the very fabric of constitutional democracy in Pakistan. If the judiciary is to retain public trust, it must ensure that no constitutional amendment, regardless of its political support, can erode the foundational tenets of judicial independence and the rule of law.