Justice Mohsin Akhtar Kayani’s Resignation: Judicial Independence on Trial

By Muhammad Imran, Staff Member, SAHSOL-LUMS Maria Batool, SAHSOL Graduate-2025 Muhammad Ameer Hamza, Final Year Law Student, SLC

An Early Departure from Judicial Office: Justice Mohsin Akhtar Kayani’s resignation on 28 October 2026, reportedly citing personal health concerns and, more significantly, reasons of conscience, marks an important moment in Pakistan’s constitutional debate. His decision to relinquish judicial office well before his scheduled retirement on 10 February 2032 raises serious questions about judicial independence and the institutional consequences of the 26th and 27th Constitutional Amendments.

In his resignation letter to the President, Justice Kayani reflected on his judicial career, highlighting the disposal of more than 23,000 cases and his commitment to constitutional supremacy, fundamental rights and the administration of justice without fear or favour. More significantly, he maintained that the 26th and 27th Constitutional Amendments had compromised the independence and institutional integrity of the High Courts. He also expressed concern over growing executive influence in judicial appointments and transfers, arguing that these developments had undermined public confidence in judicial independence.

Constitutional Amendments and Judicial Independence: Judicial independence is not a privilege enjoyed by judges; it is a constitutional safeguard designed to protect citizens against arbitrary governmental authority. Its legitimacy rests upon the judiciary’s ability to exercise judicial power independently and impartially, free from institutional and political pressure.

Justice Kayani’s resignation becomes particularly significant when examined alongside the earlier departures of Justice Syed Mansoor Ali Shah and Justice Athar Minallah. Their resignations following the 26th Constitutional Amendment reflected serious reservations about the restructuring of the judicial system. Although their individual circumstances were not identical, their departures raise an important question: have constitutional amendments intended to reorganise judicial governance weakened the institutional safeguards necessary for an independent judiciary—a question that Justice Kayani appears to have confronted a year later?

The distinction between constitutional amendments and constitutional development is particularly relevant. The authority to amend the Constitution does not automatically establish the institutional wisdom of every constitutional change. Constitutional reform must strengthen democratic institutions, preserve the separation of powers and reinforce judicial independence. Its practical consequences must therefore be evaluated against the foundational principles of constitutionalism.

Judicial Transfers, Seniority and Administrative Control: Justice Kayani had previously served as the senior puisne judge of the Islamabad High Court and was regarded as a potential candidate for its chief justiceship. Following the transfer of Justice Sardar Muhammad Sarfraz Dogar from the Lahore High Court to the Islamabad High Court, alongside other inter-court transfers, Justice Kayani challenged their legality and constitutional propriety. The Supreme Court’s constitutional bench subsequently upheld the transfers.

His own transfer to the Lahore High Court in April 2026 altered his institutional position, placing him tenth on the seniority list. Despite his seniority, he was reportedly not assigned to a division bench and was subsequently allocated a single-bench assignment at the Rawalpindi registry.

These developments raise important questions about judicial seniority, administrative discretion and the autonomy of individual judges. Judicial independence cannot be confined to protection against removal or external pressure; it must also encompass transparent and legally defensible arrangements governing transfers, bench formation and judicial assignments. Administrative authority should not become an instrument capable of compromising judicial autonomy.

Allegations of External Interference: The controversy must also be viewed against the March 2024 letter written by six Islamabad High Court judges to members of the Supreme Judicial Council. Justice Kayani was among the signatories who alleged interference by elements of the intelligence apparatus in judicial affairs, including intimidation, surveillance and pressure upon judges and their families.

These allegations exposed the vulnerability of judicial independence to influences beyond the formal constitutional structure. They also highlighted the need for credible institutional mechanisms to protect judges against external interference and ensure that allegations of intimidation are independently investigated.

Pension Entitlement: An Important Legal Dimension: Another significant aspect of Justice Kayani’s resignation concerns his pensionary entitlement. Appointed to the Islamabad High Court on 23 December 2015, he had completed approximately ten years and ten months of judicial service by the time of his resignation on 28 October 2026.

He had therefore substantially exceeded the five-year qualifying period traditionally prescribed under the High Court Judges (Leave, Pension and Privileges) Order, 1997 (President’s Order No. 3 of 1997). Paragraphs 14 and 15 have historically governed pension eligibility and calculation, including circumstances involving resignation before superannuation. Nevertheless, his precise entitlement and pension calculation must be determined under the applicable provisions as amended, particularly in view of the 27th Constitutional Amendment and its changes to the Fifth Schedule.

The Ordinary Litigant: The Forgotten Stakeholder: Perhaps the most compelling aspect of Justice Kayani’s resignation is his concern for the ordinary litigant. He observed that the principal stakeholder in the justice system continues to suffer while the needs of those seeking judicial remedies are frequently neglected.

This observation takes the debate beyond the institutional interests of judges and places the ordinary citizen at its centre. An independent judiciary is not an end in itself; it is the principal institutional safeguard for individual liberty, fundamental rights and meaningful access to justice.

When judicial impartiality loses public credibility, the legitimacy of the entire constitutional order comes under strain. Ultimately, it is the ordinary citizen, particularly those without political influence or economic resources, who suffers most from a weakened judiciary.

Judicial Conscience and Institutional Responsibility: Justice Kayani’s decision to return to legal practice rather than continue serving on the Bench raises an important question of judicial conscience. Judicial office carries constitutional responsibilities that cannot be separated from personal integrity and professional independence. Nevertheless, individual resignations cannot resolve structural deficiencies within the judicial system.

The central constitutional question is not simply why senior judges are leaving, but what institutional conditions are compelling them to reconsider their continued participation in the judiciary. Their departures should prompt Parliament, the legal fraternity and civil society to reassess the constitutional arrangements governing judicial appointments, transfers, seniority, bench formation and administrative authority.

Conclusion: Judicial Independence as a Constitutional Necessity

Pakistan’s constitutional democracy cannot flourish through the mere existence of courts or the formal observance of constitutional procedures. It requires a judiciary that is institutionally autonomous, administratively secure and capable of scrutinising governmental power without apprehension of adverse consequences.

Justice Kayani’s resignation should therefore be viewed as more than the departure of an individual judge. It is an occasion for broader constitutional reflection on the direction of Pakistan’s judicial system. The legitimacy of constitutional reform must ultimately be measured by whether it strengthens the rule of law and protects judicial independence rather than concentrating institutional authority. The resignation of judges is not, by itself, conclusive proof of the destruction of judicial independence. However, repeated departures accompanied by articulated institutional concerns should be treated as serious constitutional warning signals.

A judiciary that cannot independently hold power accountable risks retaining its constitutional form while losing the substance of constitutionalism. Judicial independence is not a professional privilege of judges; it is the citizen’s ultimate constitutional protection against the arbitrary exercise of state power.

There are some questions for Justice Kayani: Whether he thinks that if he practices law, the judiciary will impartially give his client justice–that is, whether he still trusts the impartiality of the judiciary? Whether he will dedicate some portion of his practice to pro bono for the poor? Anyway, “It is never late to come late”.