A JUDGMENT is a public document, written in the name of the Constitution and delivered in open court. The people may read it, praise it and criticise it, and the academy, bar, press and civil society should do so freely. Criticism is not the enemy of judicial authority; it is its source. A judiciary whose judgments are never read critically will never grow.
One voice is largely missing from that conversation: the judge who wrote the judgment. In Pakistan, judges mostly retire into silence. That must change. Retired judges must come out among the people, above all into the law schools, and explain their reasoning, or say, with hindsight: “I think I got that one wrong.” Such candour teaches the profession and builds public trust and confidence in the institution. A sitting judge who knows retirement means facing the public will brush nothing under the carpet.
A judgment open to criticism falls into one of three kinds. The first plainly violates the Constitution and the law. The second was legally permissible when given, but its consequences proved damaging. The third is the judgment in which the judge was complicit, bending the law to reach an outcome decided elsewhere.
To assess one, read it whole and in context: the moment, the circumstances, the law as it then stood. Then ask whether it was permissible, plainly wrong, or the judge simply listening to power.
Let me test three of my own.
In Pakistan, judges mostly retire into silence. That must change.
In the 2023 case on Punjab and Khyber Pakhtunkhwa elections, Justice Jamal Khan Mandokhail and I wanted the high courts to decide first: Lahore had already ordered elections, with appeals pending, and Peshawar was seized of the petitions. Law and practice both counselled that restraint. We read the outcome as four to three, because two colleagues who had already voted to dismiss could not, in our view, be dropped from the count; Justice Athar Minallah, one of them, recorded as much.
In hindsight, the mistake, I believe, was the chief justice’s hurried leap in; hearing the matter in appeal, the court could have spoken with one voice. Had we set the count aside and presented a united court, whether that would have produced elections is anyone’s guess. Later, the chief justice’s own bench rejected the four-three objection and fixed May 14 for Punjab polls, yet could not enforce it. The date passed, contempt was never pursued, and the court fell silent.
The larger lesson is that a court must stand united, and the chief justice’s strength is the real spine that holds it together. The Supreme Court as it stands today shows how much rests on that spine.
In the Justice Qazi Faez Isa case, the court unanimously quashed the reference, the majority for malice in law; I held it malicious in fact as well. The majority directed the FBR to examine the family’s properties and report to the council; three of us held that no direction was needed, the FBR being free to act under the tax law. On review, that view prevailed.
No one is above the law, and no one below its protection: a judge’s spouse answers under the tax law, a judge under the Code of Conduct, only in accordance with law. I am often asked whether we saved the wrong man. We saved due process and the independence of the judiciary, and in doing so we saved a man. What people thought of him later was not our concern then. A judgment is not a character certificate.
In the Practice and Procedure case, I believed, and still believe, that the court had to become collegial rather than be run by one man. Opening the door was not itself the mistake; so long as the court stood united, no one could have walked through it. What we failed to see was that the court was weak within, and weakness inside invites those outside. And it did: a 2024 ordinance gave the chief justice’s nominee a seat on the bench-forming committee. Had earlier chief justices brought in the collegial model through the full court, that door need never have opened from outside. This is a lesson, not an accusation.
Each choice was made in good faith, within the law. In hindsight, wiser choices may have been available, but choosing in the moment is the judicial function, and there the judge must be trusted. Unless a judge was complicit, there is nothing to apologise for, only lessons to share.
What must worry us most is complicity. It is not an error of judgment but a surrender of it, and it has hollowed out our courts. A judgment bent to power may be overruled, but the betrayal stays on the record. Error is part of judging. Capitulation is not. And complicity has a way of showing its face, in the promotions, benefits and advantages that later reward it. Today, that trail must be made visible.
A word to the critics. Those quick to call out judicial error must be as open-hearted in acknowledging courage. Dissent, refusal of oath and resignation are the building blocks of an independent judiciary. Ask what a judge gained by resigning when a simple yes would have secured everything. Nothing, except the honour of the institution. Criticism that records every failure and never that courage leaves the next generation no one to look up to.
So let the conversation begin, and let it be honest. Let judges speak: give the context of their decisions, own their errors without fear and explain their choices without apology. And let complicity be named for what it is.
Judicial independence has never been absolute. Sadly, there has always been a chink in the armour, a door left ajar, and someone willing to push it open. No single judgment or judge will close that door. But an honest and open conversation, carried from one generation to the next, can. That will be the real victory: not a court that never errs, but a court with no door through which power can enter.
The writer is a professor of practice at SAHSOL, Lums, and currently a distinguished visiting fellow at Yale University.
Published in Dawn, November 15th, 2026
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