The Supreme Court’s Senior Puisne Judge, Justice Mansoor Ali Shah, and Islamabad High Court’s Justice Babar Sattar have been writing letters to the Chief Justice of Pakistan (CJP), Yahya Afridi. Justice Shah and Justice Sattar have often complained that the CJP has avoided addressing institutional concerns raised by them.

Then there’s the Supreme Court’s Justice Athar Minallah, who has been delivering lectures on ‘judicial independence’ and how the current ‘hybrid regime’ in Pakistan is detrimental to democracy.

As far as Justice Shah and, especially, Justice Minallah are concerned, there is enough in their judicial pasts that their detractors often dig out to make the current dispositions of these judges sound contradictory. But this article is not about that. It is about how the ongoing tensions between prominent judges in the country are a culmination of years of ‘judicialisation’. 

Judicialisation refers to a condition in which the influence of the courts spills into political and policy-making spheres, or when important public and political matters are largely addressed by the courts. Eventually, the courts begin to intervene in matters that are the domain of politicians and administrators. The political weight of the judges and courts grows at the expense of politicians. This erodes the authority of the elected branches of government. 

When the current ‘hybrid set-up’ in Pakistan formed a ‘Constitutional Bench’ through a constitutional amendment, it justified the move as a means to check the encroachment of the courts in political matters. However, some senior judges, opposition parties and segments of the media saw this as a way to curb the influence of ‘independent-minded judges.’ But according to the government, these judges had become ‘politicised’.

Years of ‘judicialisation’ have expanded courts’ role far beyond adjudication in Pakistan. Letters, lectures and public spats among senior judges now expose how judicial activism, once hailed as judicial independence, risks becoming politicisation and self-aggrandisement

According to the researcher Bakht Munir, the most common form of judicialisation in Pakistan has been the “judicialisation of politics.” This is when judicial verdicts begin to have a decisive impact on a country’s politics. According to Munir, judicialisation of politics in Pakistan has often been about the judiciary working closely with the ‘establishment’ against elected governments. 

For decades, this form of judicialisation has had a history of legitimising martial laws, and dismissing prime ministers. Munir calls this the “judicialisation of regime change.” But he adds that, after the riotous ‘Lawyers’ Movement’ in 2007 — which forced the reinstatement of ‘popular’ CJP Iftikhar Chaudhry who had been dismissed by the dictator Gen Pervez Musharraf — the judicialisation of politics transformed and became the “politicisation of the judiciary.” 

Due to the overtly political nature of the Lawyers’ Movement, the judiciary transmuted its role and began to directly interfere in political matters (without necessarily being encouraged to do so by the establishment). This form of judicialisation often includes ‘judicial activism’ and ‘judicial populism.’ The removal of Prime Minister Yousaf Raza Gilani in 2011 by the then CJP Iftikhar Chaudhry, and Chaudhry’s verdicts against certain major government policies, are examples of how judicial activism can override legislation and acts of the chief executive. 

With the rise of populist politics in Pakistan from 2011 onwards, and especially after 2014, the judicial activism of the Chaudhry era mutated and then merged with old-school judicialisation, when the military establishment (ME) began to shape a new political force in the shape of Imran Khan and his Pakistan Tehreek-i-Insaf (PTI). This, allegedly, saw certain senior judges become part of the ‘Imran Khan Project’ and match the project’s populist nature with an increased show of judicial populism. 

This was most visible during Justice Saqib Nisar’s tenure as CJP (2016-2019). The controversial dismissal of PM Nawaz Sharif in 2017 by the courts can be seen as an outcome of the merger of the politicisation of the judiciary and old-school ME-backed judicialisation of politics. In some cases, right until the tenure of CJP Justice Umer Atta Bandial (2022-2023), the judiciary went beyond the confines of petitions, by allowing its personal views to influence decisions. 

Interestingly, some segments of civil society, the lawyers’ community and the media view the politicisation of the judiciary and judicial activism as expressions of judicial independence. However, their detractors see judges such as Justice Shah, Justice Minallah and Justice Sattar as leftovers of the highly populist variant of judicialisation that mushroomed during the now-receding era of political populism in Pakistan (2011-2022). 

It was an era in which the judiciary indulged in political intervention and policy-driven judicial activism. This included the problematic interpretation of Article 63-A of the constitution, surprise judicial hospital visits, the judicial push for the construction of a dam and the regulation of its fund, disqualification of politicians under Article 62 (1) (f), and the conviction of former PMs Gilani and Nawaz Sharif.

This raised questions about the integrity and working mechanisms of the judiciary as an institution. The practice of including ‘like-minded’ judges in the constitution of the benches, too, triggered questions about the judiciary’s institutional structure, giving the impression of partiality and favouritism.

According to Professor of Law John Ferejohn, judicialisation imposes substantive limits on parliament’s legislative authority, intruding into the formulation of substantive policymaking. To another professor of law, Muhammad Fahd Amin, through judicialisation, the judiciary establishes its authority as a key player in a country’s politics. This is something the former CJP Qazi Faez Isa tried to address, but he was mercilessly pelted with scathing criticism by those who viewed him to be “too technical” and not “empathetic enough.”

According to the framers of the 26th Amendment in Pakistan’s Constitution — through which a Constitutional Bench of ‘neutral judges’ was formed — this was done to curb the politicisation of the judiciary and judicial activism. It is still too early, though, to comment on the validity of this narrative. But some journalists/vloggers, opposition politicians and activists are fixated on viewing judicial activism as a form of judicial independence and a “struggle for democracy.”

Bakht Munir has a rather interesting take on all this. He wrote that the current form of judicialisation in Pakistan among certain judges is neither forced by political circumstances nor compelled by public opinion. According to Munir, the judicial activism of these judges is driven by “self-proclaimed authority on the pretext of matters of national significance, despite increasing criticism from various quarters and weak jurisdictional justifications.” 

During the politicisation of the judiciary and the resultant judicial activism/populism of the last decade, the judiciary desired that its interferences be broadly publicised in the media and celebrated. Munir saw this as “a tool for self-glorification.”

Published in Dawn, EOS, September 14th, 2025