On the 7th of October, the Constitutional Bench of the Supreme Court of Pakistan is scheduled to hear challenges to the 26th Constitutional Amendment — the very amendment that created these benches and conferred upon them their powers. The irony could not be starker. Here stands a bench deliberating upon the validity of its own existence — a spectacle akin to a monarch adjudicating the limits of his own crown.
But behind this irony lies a constitutional and institutional crisis. By entertaining these petitions, the bench risks eroding both the spirit and the perception of judicial independence — the cornerstone of Pakistan’s constitutional order. In doing so, it conveys not only a lack of institutional confidence in the broader judiciary, including the Chief Justice, but also fuels public scepticism about the judiciary’s impartiality. Once again, Pakistan’s superior courts risk appearing less as guardians of the Constitution and more as instruments to legitimise political convenience — a recurring pattern in the nation’s constitutional trajectory.
At the heart of the controversy lies the 26th Amendment, which introduced sweeping changes to Article 175A of the Constitution. Through this amendment, two members of the National Assembly and Senate were given a role in the appointment of judges to the superior courts. While presented as a measure of accountability, this change is fundamentally inconsistent with the doctrine of Separation of Powers, which ensures that the judiciary remains insulated from political influence. Allowing legislators — products of the political process — to participate in judicial appointments is tantamount to blurring the line between the bench and the ballot.
At the heart of the crisis is an amendment that allows politicians a role in appointing judges, blurring the separation of powers. By hearing a challenge to its own foundational power, the bench undermines the constitutional right to an impartial hearing
This amendment stands at odds with the very structure of the Constitution. The Preamble and Article 2A clearly affirm that the “independence of the judiciary shall be fully secured.” The framers of the Constitution did not leave this principle to interpretation; they constitutionalised it. The Supreme Court itself, in 1992 SCMR 1202, emphasised that the requirement to secure judicial independence leaves “no shadow of doubt” that external or political influences must be eliminated from the judicial process. The Court observed that the judiciary cannot perform its constitutional role effectively unless it enjoys complete freedom from executive or legislative interference.
Justice Mansoor Ali Shah — now the senior puisne judge of the Supreme Court — echoed this very sentiment in Syed Riaz Ali Zaidi v. Federation of Pakistan, holding that Article 2A substantively enshrines the principle of judicial independence, while Article 175 operationalises it through the doctrine of separation of powers. He observed that independence of the judiciary is not merely a procedural safeguard but a structural guarantee designed to uphold the rule of law.
This judicial reasoning aligns with the broader understanding of constitutionalism. As Sir Francis Purchas wrote, “Independence of the judiciary, in effect, means self-judicial governance — control of the judiciary over the judicial system.” The judiciary’s autonomy is not an abstract virtue but a practical necessity; it ensures that justice is neither influenced nor perceived to be influenced. Former Chief Justice Iftikhar Muhammad Chaudhry described judicial independence as an “essential organ of the State” and a salient feature of the Constitution itself — one that cannot be diluted by legislative or executive design.
The basic features doctrine, articulated in Syed Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869), provides further constitutional anchoring to this argument. The Court in that case held that certain core principles — including independence of the judiciary, federalism, and parliamentary democracy — form the immutable foundation of the Constitution and cannot be amended even by Parliament. Similarly, in Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), provisions of the National Reconciliation Ordinance (NRO) were struck down precisely because they undermined judicial independence. These precedents collectively affirm that independence of the judiciary is not a privilege — it is a constitutional command that binds all institutions.
Against this backdrop, the present Constitutional Bench’s decision to hear the case concerning the 26th Amendment raises a profound question of propriety. Can a bench constituted under a provision in dispute adjudicate upon the validity of that very provision? Doing so transforms the Court from an impartial arbiter into an interested party — a judge in its own cause.
Additionally, the present Constitutional Bench faces a fundamental conflict of interest. Article IV of the Code of Conduct for Judges of the Supreme Court and High Courts explicitly requires judges to “decline to act in a case in which they have a personal interest.” This provision is clear: where a judge’s impartiality may reasonably be questioned, recusal is not optional — it is obligatory. In the present case, the judges of the Constitutional Bench have a direct and personal stake, as their very powers stem from the amendment under challenge. Hearing this case not only violates their Code of Conduct but also undermines the judiciary’s moral authority to demand accountability from others.
The issue is further compounded by the constitutional right to a fair trial, enshrined in Article 10A of the Constitution. This Article guarantees that “for the determination of his civil rights and obligations or in any criminal charge, a person shall be entitled to a fair trial and due process.” The Supreme Court in Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) recognised that the right to a fair trial is intrinsic to justice and must include impartial adjudication. When judges sit in judgment over their own authority, that essential element of public confidence collapses.
Therefore, by proceeding with this case, the Constitutional Bench risks violating not only constitutional doctrines but also its own ethical framework and the fundamental right to an impartial hearing.
The judiciary’s legitimacy has never derived from power, but from principle. Its strength lies not in asserting its supremacy, but in demonstrating its restraint. The Supreme Court now stands at a junction — it can either reinforce the foundational principle that no one may be a judge in their own cause, or it can weaken the moral edifice on which its authority rests.
If it chooses the latter, the cost will not merely be institutional; it will be constitutional. Judicial independence, once compromised, cannot be restored by proclamation — only by conduct. And if the judiciary itself begins to blur the line between adjudication and self-preservation, it risks becoming the very thing the Constitution was designed to prevent: a power unchecked, accountable to none.