Guardians or gated in?

In every functioning democracy, an independent judiciary stands as the final barrier between the citizen and abuse of state power. The separation of powers is not an abstract theory; it is the working architecture that prevents domination by any one branch. Courts are not designed to move with political currents, but to resist them. This principle is embedded across constitutional democracies, from the life tenure of US federal judges, crafted to shield them from executive preference, to the fixed, non-renewable terms and carefully depoliticized appointment processes that govern Germany’s Federal Constitutional Court. The common thread is clear: security of tenure and insulation from political influence are prerequisites for judicial authority. A judge who is dependent on political goodwill or vulnerable to reprisal cannot act as a neutral arbiter of constitutional limits.

Against this global standard, Pakistan’s recent constitutional trajectory is deeply troubling. The Constitution (26th Amendment) Act, 2024, and the Constitution (26thAmendment) Act, 2025, dramatically restructure judicial leadership, appointments, and jurisdiction. Though presented as reforms to correct imbalance and excessive judicial activism, the cumulative effect is unmistakable: the subordination of the judiciary to political control. Rather than strengthening constitutional governance, the amendments weaken the protection of rights and dilute the judiciary’s capacity to check executive and legislative overreach.

CONTEXT: THE RATIONALE AND THE SUO MOTU DEBATE: The amendments emerged from long-standing friction over the Supreme Court’s use of suo motu jurisdiction under Article 184(3). Following the 2007 lawyers’ movement, the Court, invoking public interest litigation and the enforcement of fundamental rights, began intervening extensively in political and administrative matters. To supporters, this activism filled a vacuum left by weak institutions and unresponsive governance. To critics, it represented judicial intrusion into policy choices and political contests.

Successive governments complained that the Court’s expansive interpretation of its own powers destabilized governance and allowed unelected judges to override the democratic process. The 26th and 27th Amendments represent the political system’s decisive reply: narrowing judicial authority, reconfiguring appointments, and altering institutional hierarchies in ways that critics argue go far beyond procedural correction and instead amount to structural subordination of the judiciary.

THE 26TH AMENDMENT: RESHAPING AUTHORITY AND APPOINTMENTS: The 26th Amendment, passed in October 2024, enacted a series of changes that many domestic and international legal observers— including the International Commission of Jurists (ICJ)— called a serious blow to judicial independence.

1. A Three-Year Term for the Chief Justice: The amendment revises Article 179 by capping the Chief Justice of Pakistan’s term at three years, replacing a tenure defined solely by retirement age. This short, fixed term introduces significant instability. A Chief Justice with only three years has limited ability to implement long-term administrative reform, cultivate jurisprudential coherence, or ensure continuity in judicial policy. More frequent vacancies create additional opportunities for political influence at the very top of the judicial hierarchy, altering the institutional balance intended by the Constitution.
2. Reconstituting the Judicial Commission of Pakistan: The restructuring of the Judicial Commission of Pakistan (JCP) alters the balance between judicial and political actors in the appointment process. The inclusion of four parliamentary members, two from each House, split between government and opposition, means judicial members no longer hold a clear majority. While proponents defend this as democratization, the shift introduces a decisive political presence in what was originally designed as a professional, merit-based body.

The amendment also introduces a Special Parliamentary Committee (SPC) empowered to select the Chief Justice from among the three senior-most judges. This departs from the long-standing principle of automatic seniority, replacing a predictable and apolitical succession mechanism with one that enables political discretion. Even if seniority remains a guiding factor, the introduction of parliamentary choice at the apex of judicial leadership significantly increases the risk of politicized selection.

3. Curtailment of Suo Motu Powers: The 26th Amendment substantially restricts the Court’s ability to take suo motu notice by reconfiguring how constitutional cases are initiated and processed, and by mandating Constitutional Benches for such matters. While not couched as an outright abolition, the combination of procedural constraints and jurisdictional redistribution amounts to a severe curtailment of the Court’s previously unfettered ability to intervene in matters of public interest. Critics argue that this narrows an essential tool for rights protection— particularly in contexts where vulnerable groups cannot easily access the courts.

If the judiciary becomes gated in shaped, supervised, and restrained by political authority, it cannot serve as the guardian the Constitution requires. The coming years will determine whether judicial independence in Pakistan remains a constitutional promise or becomes a historical memory.

THE 26THAMENDMENT: CREATING A PARALLEL APEX COURT: The 27th Amendment, enacted in November, builds upon and amplifies the 26th Amendment’s structural changes. It introduces an entirely new judicial architecture by establishing the Federal Constitutional Court (FCC).

1. Establishment of the Federal Constitutional Court: Under the new Article 175E, the FCC becomes the exclusive forum for major constitutional matters, including:

Constitutional interpretation

Federal-provincial disputes

Public interest cases relating to fundamental rights

By transferring this jurisdiction, the amendment transforms the Supreme Court from Pakistan’s constitutional guardian into an appellate court for non-constitutional civil and criminal matters. The realignment dismantles the coherent apex structure the 1973 Constitution created and introduces risks of fragmentation, conflicting jurisprudence, and legal uncertainty.

2. Executive Dominance in Foundational Appointments: For its initial formation, the FCC’s first judges are to be appointed by the President on the advice of the Prime Minister, bypassing even the newly altered JCP. Given that these initial appointments will shape the FCC’s culture, jurisprudence, and legitimacy for decades, executi deep concerns about neutrality and independence.

The amendment also raises the retirement age of FCC judges to 68, granting longer tenure to those appointed through this executive-centric process.

3. Judicial Transfers and Disciplinary Leverage: A significant and troubling development is the amendment to Article 200, which enables the transfer of High Court judges without their consent. Judges who decline such transfers within 30 days may face proceedings before the Supreme Judicial Council under Article 209. This undermines a foundational pillar of judicial independence: security of tenure. A judiciary vulnerable to punitive transfers or disciplinary threats cannot operate free from political coercion.

Unsurprisingly, the legal community reacted strongly. Justices Syed Mansoor Ali Shah and Athar Minallah, two respected members of the Supreme Court, resigned shortly after the amendment’s passage, citing grave concerns about the erosion of judicial independence.

The Basic Structure Challenge and the Democratic Precipice: Numerous petitions have been filed challenging the amendments, invoking Pakistan’s implicit Basic Structure Doctrine. While Pakistan’s courts have historically been inconsistent in articulating this doctrine, judicial independence, federalism, and constitutional supremacy have long been recognized as core structural features. Petitioners argue that Parliament’s sweeping reconfiguration of judicial appointments, tenure, and jurisdiction alters the basic constitutional design and therefore exceeds Parliament’s amending power.

Comparative experience offers cautionary lessons. In jurisdictions where apex courts have been politically subjugated, whether in Turkey, Hungary, or Venezuela, subsequent democratic backsliding accelerated rapidly. The judiciary is often the first institution to be reshaped, ensuring minimal resistance when further consolidation of power follows.

Pakistan now stands at a similar inflection point. The cumulative effect of the 26th and 27th Amendments is not merely administrative reform but a systemic recalibration of power away from independent judicial oversight and toward political control. Unless courts, bar associations, civil society, and the wider public mobilize to defend constitutional norms, the country risks institutional arrangements that may be difficult to reverse.

If the judiciary becomes gated in shaped, supervised, and restrained by political authority, it cannot serve as the guardian the Constitution requires. The coming years will determine whether judicial independence in Pakistan remains a constitutional promise or becomes a historical memory.