“The changes made to the judicial system in the 27th Amendment are alarming…. They will significantly impair the judiciary’s ability to hold the executive accountable and protect the fundamental human rights of the people of Pakistan. Together with the 26th Amendment, passed only a year ago in October 2024, the amendment fundamentally alters the structure of the judiciary and undermines the judicial function in various ways.” — International Commission of Jurists, 13 November 2025.
The Constitution (Twenty-seventh Amendment) Act, 2025 [27th Amendment], which received the assent of the President of Pakistan on 13 November 2025, has elicited widespread criticism, both at national and international levels. Like its predecessor, the Constitution (Twenty-sixth Amendment) Act, 2024 [26th Amendment], passed on 21 October 2024, many believe that it is bound to dismantle the independence of the judiciary, consolidate authoritarianism over constitutionalism, cause irreparable loss to democratic institutions, and destroy the right of free and fair access to justice and the rule of law.
The International Commission of Jurists (ICJ) has issued a detailed charge sheet highlighting what it adjudges are the vices of the 27th Amendment. Several senior lawyers in Pakistan have expressed their apprehensions about the independence of the newly established Federal Constitution Court (FCC) of Pakistan.
The FCC started hearing cases with effect from 17 November 2025, but without the requisite infrastructure. There has been a lack of communication regarding cases fixed (the website of the FCC is not properly publicised to this day). Another grave shortcoming is the non-availability of the facility to file leave to appeal, etc., at local registries where the Supreme Court (once the apex court of Pakistan) has established offices.
For filing leave to appeal and other documents, litigants have to bear extra costs, as the facility is only available in the Islamabad High Court, where the FCC is temporarily housed. Lawyers, at short notice, have been forced to travel to Islamabad, as the video-link facility is conspicuous by its absence at the FCC. It would have been better to make the FCC fully functional before the start of hearings; proceedings could have been postponed for a few days. However, it is strange that cases of a political nature and those involving revenues have been fixed hastily since 17 November 2025.
Issues relating to constitutional importance vis-à-vis the 27th Amendment were discussed by this scribe in an earlier article published on 17 November 2025. This series will analyse the historyt he sordid story of the dispensation of justice in Pakistan and what role the FCC could play in the future.
In accordance with the Constitution, judges of the Supreme Court or High Courts who decline appointments to the FCC would be deemed to have retired
Since its inception, both military and civilian dictatorial rulers in Pakistan have muzzled all the state organs, especially the judiciary, even though it became an approving arm for many unconstitutional governments.
The history of the existing judiciary and judicial system in Pakistan dates back to the British colonial era. Since independence, nothing has changed in the Anglo-Saxon system except for a patchwork (sic) of so-called Islamic laws and the establishment of the Federal Shariat Court by General Zia-ul-Haq and now that of the FCC through a constitutional amendment by a self-acclaimed representative Parliament (sic), ending the primacy of the erstwhile ‘Supreme Court of Pakistan’, now renamed the Supreme Court.
The incumbent Chief Justice, Mr Justice Yahya Afridi, however, is allowed to retain the title of Chief Justice of Pakistan of the truncated Supreme Court until his retirement on 25 October 2027. He took the oath of office on 26 October 2024 for a three-year term. After the approval of the 26th Amendment on 21 October 2024, Mr Justice Yahya Afridi was nominated on 22 October 2024 as Pakistan’s 30th Chief Justice, bypassing two illustrious judges senior to him, Mr Justice Syed Mansoor Ali Shah and Mr Justice Munib Akhtar. Justice Syed Mansoor Ali resigned after the 27th Amendment, along with Justice Athar Minallah.
The first Chief Justice of the FCC, Mr Justice Amin-Ud-Din Khan, appointed by the President on the Prime Minister’s advice, took oath on 14 November 2025. He will serve a three-year term or until he reaches the age of sixty-eight, whichever occurs earlier. A judge of the FCC shall hold office until he attains the age of sixty-eight years, unless he sooner resigns or is removed from office. In accordance with the Constitution, judges of the Supreme Court or High Courts who decline appointments to the FCC would be deemed to have retired.
The 27th and 26th Amendments, passed by Parliament in utter haste, ostensibly meant to fix the maladies faced by the country’s ailing judicial system, are nothing but attempts to ensure absolute control over the state apparatus by those who matter in the land!
On 14 August 1947, we inherited a strong and independent judiciary with an unquestionable reputation for competence and integrity. Sir Justice Mian Abdul Rashid, the first Chief Justice of Pakistan, was a man of unimpeachable character who refrained from attending government gatherings and public functions. His successor, Justice Muhammad Munir, became controversial for his judgements in the Maulvi Tamizuddin case [PLD 1955 Federal Court 240] and a few others, though his critics seldom realise that it was actually the failure of the political elite that paved the way for recurrent unconstitutional rules, for which the judiciary cannot alone be blamed.
One cannot, however, forget some of his great successors like Justice Shahabuddin, Justice Dorab Patel, and Justice A.R. Cornelius, who demonstrated high standards of judicial conduct even in the earlier tumultuous years of our political history. In post-independence years, the judiciary’s dilemma remained the perpetual failure of political leadership, as it was approached many a time to determine the validity or otherwise of capturing state power by men in uniform.
In The State v Dosso [PLD 1958 SC 533], Chief Justice Muhammad Munir called it a “successful revolution”, but Justice Hamoodur Rehman in Asma Jillani v Government of Punjab [PLD 1972 SC 139] called it a “usurpation” of the people’s rights. In Begum Nusrat Bhutto v Chief of Army Staff [PLD 1977 SC 657] came yet another endorsement of the doctrine of necessity, wherein “intervention” was declared lawful “in the best and larger interests of the nation”.
Deterioration in the political arena affected the higher judiciary’s role, especially during the following dreadful events that posed crucial tests for judges:
- The first dark day of our constitutional history was 7 October 1958, when the first Constitution of 1956 was abrogated and Martial Law was imposed by President Iskander Mirza.
- The second Constitution of 1962, promulgated by a military dictator, was abrogated on 25 March 1969 on the imposition of another Martial Law by General Yahya Khan, and what ensued in 1971 was the most tragic event of our history.
- The 1973 Constitution was mutilated by another dictator, General Zia-ul-Haq, and during his 11-year despotic rule, numerous amendments were made that were later validated via Article 270A, which still remains a dark stain on our constitutional and political history.
- Dismissal of two elected governments by the President using his discretionary powers under the 1973 Constitution.
- The military overthrow of an elected government on 12 October 1999, promulgation of the Provisional Constitutional Order (PCO), Legal Framework Order (LFO), and whatnot for controlling state organs and retaining both the uniform and the civil post of President, as well as muzzling the higher judiciary.
In the case of the late General Pervez Musharraf, the Supreme Court not only gave him three years but also the right to amend the Constitution! This was indeed the most dreadful act by the apex court of the country. However, the defiance and emphatic ‘NO’ by Justice Iftikhar Muhammad Chaudhry to the same Musharraf changed the entire judicial landscape.
For the judiciary, 3 November 2007 was the beginning of a new era. A dictator imposed judiciary-specific martial law—this time the victims were not politicians but the judges. For the first time, it was a matter of survival for those who had always sided with men in khaki against politicians.
The challenge in 2025 for the FCC remains the same and historic: how to maintain the supremacy of the Constitution, which is a sanctimonious document representing and expressing the supreme will of the people. The Constitution is the fountainhead of other legislation. Thus, “an Article in the Constitution enacted by the framers of the Constitution shall prevail over the one incorporated by the Chief Martial Law Administrator, where there is an irreconcilable conflict”—Al-Jehad Trust v Federation of Pakistan [PLD 1996 SC 324].
Judges are known for exploring their conscience as well as the law books when they have to decide difficult political cases. They are neither power-brokers nor king-makers. We must not expect from the judiciary what it cannot deliver, and the FCC is no exception!
The judiciary’s role to protect the Constitution and fundamental rights, now confined to the FCC and High Courts, is that of interpreter of the Constitution and not that of lawmakers. It is for the political parties and elected representatives of the people of Pakistan to make necessary changes to the Constitution—converting it into a vibrant contract for all federating units, giving them their due rights, and defending the people’s will. Only the people’s will and power can put an end to unconstitutional endeavours that now include the 26th and 27th Amendments.
The 27th and 26th Amendments, passed by Parliament in utter haste, ostensibly meant to fix the maladies faced by the country’s ailing judicial system, are nothing but attempts to ensure absolute control over the state apparatus by those who matter in the land!
Of late, their anxiety pertained to regaining “unchallenged (lost) command” over some judges of the Supreme Court and High Courts even after the 26th Amendment. The move through the 27th Amendment, marred by allegations of coercion by a government suffering from a serious legitimacy issue, is all about power, not conforming to constitutional norms and democratic principles. It will further harm and not reinforce the integrity and independence of state institutions, especially its judicial arm.