The judiciary of Pakistan has always stood at the uneasy crossroads of authority and vulnerability. Today, however, the tension takes on a subtler form: the contest is not between Constitution and military, but between constitutional powers and constitutional independence.
This paradox is not without history. At every turn, the judiciary has been tested both from without and within. Munir’s doctrine of necessity in 1954 legitimised executive overreach. Sajjad Ali Shah’s downfall in 1997 exposed how internal rivalries could cripple the institution from within, while Musharraf’s Provisional Constitutional Orders of 2000 and 2007 forced judges to choose between survival and defiance. The Lawyers’ Movement later restored the judiciary’s standing, yet its triumph also ushered in an era of expansive activism that redefined the court’s role—a trajectory that found its reckoning in the 26th Constitutional Amendment of 2024.
The Amendment has transformed this recurring strain into a sharper and more complex confrontation. By capping the tenure of the Chief Justice and reshaping the Judicial Commission, it struck directly at the institutional architecture of judicial power. Supporters call it democratisation, a check on activism that restores parliamentary sovereignty. Critics call it encroachment, a weakening of the courts at the very moment when they are needed most to restrain executive dominance.
Yet beyond these competing claims lies a deeper truth, one Machiavelli warned of: power is never content to remain idle. It stretches, adapts, and seeks expression, even under the strictest constraints. Traditionally, power had its own dynamics, distinct from constitutional authority. Now, after the Amendment, even power cloaks itself in legality, justified as ‘constitutional power.’ In this transformation lies the new contest: constitutional powers set against constitutional independence, each claiming legitimacy, each demanding primacy.
The IHC’s new Practice and Procedural Rules were approved in a narrow 6–5 vote, with dissenting judges protesting that they were given no adequate time or space to deliberate on rules of such importance
The 26th Amendment and its ripple effects within the Islamabad High Court (IHC) embody this lesson. Judicial power is not extinguished but redefined, setting judges at odds over what the Constitution or rules permit and what independence demands—a struggle unfolding not outside but within the very realm of constitutionalism itself.
The appointment of Justice Sardar Mohammad Sarfraz Dogar as Chief Justice of the IHC, made by the President after “meaningful consultation” with Chief Justice Afridi, ignited the first spark. Though concerns were raised over seniority and the constitutional scheme of transfers, the Supreme Court dismissed the challenge brought by IHC judges. Inside the High Court, however, unease lingered—less a passing disagreement than a quiet fracture that refused to heal.
Justice Babar Sattar, in his latest letter to his Chief Justice, invoked the old warning that “power tends to corrupt, and absolute power corrupts absolutely,” suggesting that administrative control had come to outweigh collective deliberation. Justice Ijaz Ishaq Khan went further, stating that judges had “kowtowed” before external pressures instead of standing firm as custodians of law. For them, the issue was not merely procedural but existential: whether the judiciary could still claim independence if its own members felt silenced or excluded.
The concerns were not abstract. Senior judges were removed from benches and administrative committees without prior consultation. Rosters were redrawn in ways seen as exclusionary. Judges were required to seek No Objection Certificates before travelling abroad—a step they viewed as restrictive of their autonomy. And perhaps most significantly, the IHC’s new Practice and Procedural Rules were approved in a narrow 6–5 vote, with dissenting judges protesting that they were given no adequate time or space to deliberate on rules of such importance.
What unfolds today is a kind of “judicial fractionalism”—a house divided, where each faction claims the mantle of constitutional fidelity while pulling the institution in opposite directions.
For the citizen, these disputes may seem like internal quarrels. Yet their outcome matters deeply. Judicial independence is not an abstract principle; it is the guarantee that when an ordinary person approaches the court, justice is not already shaped by political winds or institutional rivalries. When judges themselves speak of exclusion, when vital rules pass by a single vote, when even their freedom of movement is conditioned on prior approval, the perception of independence suffers—and with it, the confidence of the public.
In the end, the question is not whether one side or the other will prevail in Islamabad or beyond. The real question is whether the judiciary can discipline its own competing visions of constitutionalism into harmony—or whether, as in so many moments before, it will fracture and consume itself in the endless quest for power and independence.