It cannot be denied that the Supreme Court under Chief Justice of Pakistan Saqib Nisar took on a very distinctive direction, favouring a judicially active approach of the Court. However, it seems that not all the judges in the Supreme Court agreed with this dynamic method of judicial activism, as we start to see cracks of division among the Supreme Court judges, just as the CJP is about to retire.

While hearing a case at the Peshawar Registry of the Supreme Court of Pakistan, in a three-member bench, Justice Qazi Faez Isa inquired from the counsel as to how the case was initiated by the Human Rights Cell, under Article 184(3) of the Constitution. This lead the Honourable Chief Justice to announce in open court that the Bench would be reconstituted and that the new two-member bench would exclude Justice Qazi Faez Isa. This decision did not sit well with Justice Mansoor Ali Shah, who was the third member of the three-member bench, as he penned a scathing judgment declaring the order of Chief Justice about reconstituting the three-member bench void and non-est.

In his Order, Justice Shah voiced his concerns about the independence of Supreme Court judges being compromised by forceful reconstitution of member benches. Under Order XI of the Supreme Court Rules, 1980 (“Rules”) the Chief Justice has the prerogative to constitute benches but a bench once constituted and seized of a matter on the judicial side, cannot be reconstituted by the Chief Justice in exercise of his administrative powers, unless a member of the bench withdrew himself from the bench. Citing from international jurisdictions, Justice Shah emphasised that a judge ought to be aware of his power and the limits thereof, and cited Justice Jackson’s statement, !We are not final because we are infallible, but we are infallible only because we are final.”

This is one of the few direct clashes amongst the Supreme Court judges that we have seen publicly. This rebellion from within, against the CJP’s liberal use of suo moto, right when he is about to retire, indicates that the next leadership of the SC will take on a very different direction than Nisar’s. Considering that judicial activism had increased due to the point of the functions of parliament and the Court colluding, perhaps this check on unbridled authority was very much needed- and it could not have come from any place better than from within the Court itself.