Dr. Ikramul Haq
“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, November 13, 2025
The Constitution (Twenty-seventh Amendment) Act, 2025 [27th Amendment] that received the assent of President of Pakistan on November 13, 2025, has elicited widespread criticism, both at national and international levels. Like its predecessor, Constitution (Twenty-sixth Amendment) Act, 2024 [26th Amendment], passed on October 21, 2024, many believe that it is bound to dismantle independence of judiciary, consolidate authoritarianism over constitutionalism, cause irreparable loss to democratic institutions, destroy right of free and fair access to justice and rule of law.
The International Commission of Jurists (ICJ) has issued a detailed charge sheet highlighting what it adjudges are vices of the 27th Amendment that is available here. A number of senior lawyers in Pakistan have shown their apprehensions about the independence of the newly-established Federal Constitution Court (FCC) of Pakistan.
FCC started hearing cases with effect from November 17, 2025, but without requisite infrastructure. There has been a lack of communication in respect of cases fixed (website of FCC is not properly publicized till today). Another grave lacking is non-availability of facility of filing leave to appeals etc. at local registries where the Supreme Court (once apex court of Pakistan) has established offices.
For filing of leave of appeals and other documents, litigants have to bear extra cost, as facility is only available in Islamabad High Court, where FCC is temporarily housed. Lawyers, on a short notice, have been forced to travel to Islamabad, as video-link facility is conspicuous by its absence at FCC. It would have been better to make FCC fully functional before start of hearings that could have been postponed for few days. However, it is strange that cases of political nature and involving revenues are being fixed hastily since November 17, 2015.
Issues related to constitutional importance vis-à-vis 27th Amendment were discussed by this scribe in an earlier article published on November 17, 2025. This series will analyze the history— sordid story—of dispensation of justice in Pakistan and what role FCC could be playing in future.
Since its inception, both military and civilian dictatorial rulers in Pakistan have muzzled all the state organs—especially judiciary, notwithstanding the fact that it became an approving arm for many unconstitutional governments.
History of 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 patchwork (sic) of so-called Islamic laws and establishment of Federal Shariat Court by General Ziaul Haq and now that of FCC through a constitutional amendment by a self-acclaimed representative Parliament (sic), ending the primacy of erstwhile ‘Supreme Court of Pakistan’, renamed Supreme Court.
The incumbent Chief Justice, Mr. Justice Yayha Afridi, however, is allowed to retain the title of Chief Justice of Pakistan of trunked Supreme Court till his retirement on October 25, 2027. He took oath of the office on October 26, 2024 for a three-year term. Subsequent to the approval of 26th Amendment on October 21, 2024, Mr. Justice Yahya Afridi, was nominated on October 22, 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 FCC, Mr. Justice Amin-Ud-Din Khan, appointed by the President on the Prime Minister’s advice, took oath on November 14, 2025. He will serve a three-year term or until he reaches the age of sixty-eight, whichever occurs earlier. A Judge of 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.
On August 14, 1947, we inherited a strong and independent judiciary having unquestionable reputation of competence and integrity. Sir Justice Mian Abdul Rashid, the first Chief Justice of Pakistan, was a man of unimpeachable character, who restrained from attending government gatherings and public functions. His successor, Justice Muhammad Munir, for his judgements in Maulvi Tamizuddin case [PLD 1955 Federal Court 240] and few others did become controversial, though his critics seldom realize that it was actually failure of the political elite that paved the way for recurrent unconstitutional rules for which judiciary could not 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, our judiciary’s dilemma remained 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 “usurpation” of 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 interest of the nation.
Deterioration in the political arena affected higher judiciary’s role, especially the following dreadful events that posed crucial tests for judges:
- The first dark day of our constitutional history was October 7, 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 March 25, 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 Ziaul Haq, and during his 11-year despotic rule, numerous amendments were made that were later validated vide 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. Military overthrow of an elected government on October 12, 1999, promulgation of Provisional Constitutional Order (PCO), Legal Framework Order (LFO) and what not for controlling State organs and retaining both uniform and the civil post of President as well as muzzling the higher judiciary.
In the case of late General Pervez Musharraf, 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, defiance and an emphatic ‘NO’ by Justice Iftikhar Muhammad Chaudhry to same Musharraf changed the entire judicial landscape.
For judiciary, November 3, 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 the issue of survival for those who always sided with men in khaki against politicians.
The challenge in 2025 for FCC remains the same and historic: how to maintain the supremacy of Constitution, which is a sanctimonious document representing and expressing the supreme will of the people. Constitution is the fountainhead for 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 judiciary what it cannot deliver and FCC is no exception!
Judiciary’s role to protect Constitution and fundamental rights, now confined to FCC and high courts, is that of interpreter of Constitution and not that of lawmakers. It is for the political parties and elected representatives of the people of Pakistan to make necessary changes in 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 26th and 27th Amendments.
The 27th and 26th Amendments, passed by the Parliament in utter haste, ostensibly meant to fix the maladies faced by country’s ailing judicial system, are nothing but attempts to ensure absolute control over state apparatus by those who matter in the land!
Of late, their anxiety pertained to regaining “unchallenged (lost) command” over some judges of Supreme Court and High Courts even after 26th Amendment. The move through 27th Amendment, marred by allegation of coercion, by a government suffering from 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.
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Dr. Ikramul Haq, Advocate Supreme Court, Adjunct Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE), holds LLD in tax laws. He was full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He also served Civil Services of Pakistan from 1984 to 1996.