How Pakistan’s judiciary is being undermined | Explained

The story so far:

On November 12-13, Pakistan’s National Assembly and the Senate passed the 27th amendment, with the President also giving his assent. While the amendment introduces new provisions in the military command structure, it has far-reaching implications for Pakistan’s judiciary. The amendment has created a new Federal Constitutional Court (FCC), and has curtailed the Supreme Court’s role as the custodian of the Constitution, thereby reducing the judiciary’s independence. Three judges from the Supreme and High Courts have already resigned in protest against the 27th amendment, while four judges from the Islamabad High Court have appealed against it.

What are the implications?

The 27th amendment will affect the judiciary’s independence in the following ways. First, the creation of a new FCC to address issues relating to the Constitution and federal-provincial relations would mean that the Supreme Court would no longer have its original jurisdiction. Thus, the Supreme Court would not hear cases relating to the interpretation of the Constitution, fundamental rights, or questions of federal-provincial relations. In recent years, the Supreme Court had used its original jurisdiction to deliberate on a few high profile political developments including the Panama Case (which resulted in the formation of a Joint Investigation Team and the disqualification of Nawaz Sharif, the then Prime Minister in 2017) and the Memogate (in which Pakistan’s Ambassador to the U.S. was investigated on whether he authored a memo that asked the U.S. to support the civilian government in 2011, then led by the Pakistan People’s Party (PPP), and prevent a coup).

Second, the 27th amendment provides the executive with the power to transfer judges without their consent. Critics of the amendment argue that this provision would enable the executive to transfer judges who do not toe its line. Though the executive has to follow certain procedures, in effect, it could transfer judges to secure its choice or to penalise those who disagree with it. This would significantly undermine the judiciary’s independence at the higher level. The real reason for the creation of an FCC — though the executive is trying to justify it in terms of necessity — is to pick those judges who will be amenable, especially with respect to constitutional matters. The pace at which the FCC’s chief justice has been appointed, along with other judges, and the space it found for itself in the Islamabad High Court premises, the critics argue, is part of a plan to subvert the Supreme Court’s “over reach” on constitutional matters.

Third, is the effect the relationship between the FCC and the Supreme Court will have on the judiciary. While a section of judges and lawyers are against the amendment and the FCC, another section has accepted it and is even ready to join it. While senior and former judges have been demanding a “Full Court Meeting,” it did little when it met during the third week of November. Today, the FCC already has a Chief Justice and a few other judges; it has also started entertaining cases in the first week of its existence. The judiciary seems divided, and this will only further weaken it.

Overall, the 27th amendment gives the executive and the legislature an edge over the judiciary, thereby undermining the essence of the balance of power in a constitutional democracy. It also undermines one of the crowning successes of the 18th amendment, which aimed to depoliticise the judiciary and make it independent. The 18th amendment, passed in 2010 by the PPP government, provided for a Judicial Commission of Pakistan (JCP) to recommend the names of new judges, thereby giving more space to the judiciary; the 27th amendment makes it redundant.

Why is the government trying to undermine the rule of law?

Separation of powers and an independent judiciary are essential for any constitutional democracy, especially Pakistan. Political parties of Pakistan should know this, given the challenge from the Establishment (Pakistan’s military complex) to democracy and its institutions. An independent judiciary will remain the only institution that could protect, if at all, overreach from the Establishment.

One of the reasons for introducing the amendment has been that it will reduce the caseload of the higher judiciary. However, this argument is flawed, as most delays occur in the lower courts. According to the letter drafted by Judge Mansoor Ali Shah, quoting the Law Commission of Pakistan, of the 2.26 million pending cases, 82% were at the district courts, and less than 3% were pending at the Supreme Court.

The real motivations of the Pakistan Muslim League (N) (PML-N) government are to clip the wings of the Supreme Court and reduce it to a Court of Appeals by removing its original jurisdiction.

What is the amendment’s history?

It all started with the 26th amendment, which was passed by the PML-N government in 2024. It altered the composition of the JCP. In 2010, the 18th amendment had mandated that the JCP be comprised of judges from the Supreme Court and High Courts. The 26th amendment altered the composition by bringing in more members from the executive, thereby undermining the selection of judges for the higher courts. The JCP now has more members from the political side. The 26th amendment also granted the JCP the power to appoint constitutional benches, thereby removing the Chief Justice of Pakistan’s power to appoint benches.

The 26th and 27th amendments are not the first time that the executive in Pakistan has attempted to undermine the judiciary. The higher judiciary’s relationship with both the military and the political executive has been troubled since Pakistan’s independence. During the first four decades, the judiciary took a tough pill to defend the unconstitutional actions taken by its military dictators such as Ayub Khan, Yahya Khan and Zia-ul-Haq. The Supreme Court invoked the “Doctrine of Necessity” to look the other way as military rulers tore up the Constitution. Zia was even quoted as saying that the Constitution was a “piece of paper” that could be torn at any time.

In the 1990s, the judiciary was brought into the centre of the power struggle between the Presidents and the Prime Ministers. When the President dismissed the PM, backed by the Establishment, the Supreme Court had to intervene by either justifying the dismissal (Benazir Bhutto’s dismissals in 1990 and 1996) or by restoring the government (Nawaz Sharif’s government in 1993).

The judiciary confronted a political executive for the first time in 1996, when Nawaz Sharif tried to remove the Chief Justice. It led to PML-N party members storming the Supreme Court, thereby starting an uncomfortable relationship between the two. Later in 2017, the Supreme Court disqualified Nawaz Sharif in the Panama Papers case — an issue that many consider an overreach by the Court.

Since the confrontation between Justice Iftikhar Chaudhry and President Pervez Musharraf in 2007, which triggered the Lawyers’ movement, the judiciary has been assertive against both the political executive and the Establishment.

The judicial assertion reached its peak under the Chief Justice Qazi Faez Isa. Six judges of the Islamabad High Court wrote an open letter complaining of coercion and even intimidation by the intelligence agencies.

This might have prompted the military and the political executive to assert control over the judiciary. The 26th amendment started the process; and the 27th has taken it forward.

What next?

The FCC has already started functioning. The opposition and a section of the legal community have warned of a confrontation in the streets. There is also civil society support for maintaining the independence of the higher judiciary. But, the two major political parties, the PPP and the PML-N stand together, and are supported by the Establishment.

More importantly, the judiciary stands divided — while a few (three so far, including Supreme Court judges Mansoor Ali Shah and Athar Minallah) have resigned, others have agreed to serve on the new FCC.

Given the political and societal issues facing Pakistan, and the questions of accountability, especially in higher institutions, as the recent International Monetary Fund report highlighted, an independent judiciary is essential for Pakistan. Unfortunately, the 27th amendment undermines that.

D. Suba Chandran is Professor and Dean at the school of conflict and security studies at the National Institute of Advanced Studies.

Published – December 01, 2025 08:30 am IST