No constitutional amendments have altered and restructured the judicial landscape so significantly during a democratically elected parliamentary tenure as the 26th and 27th amendments.
Both constitutional changes – the 26th Amendment, passed in October 2024, and the 27th Amendment, gaining presidential assent only recently in November 2025 – are not isolated ‘events’ but are presented as interconnected and coordinated strategies in which one strengthens and enforces the other. Though they come a year apart, they are intended to ensure a cumulative and consequential impact on judicial independence through unprecedented executive overreach. To understand their full effect, one must study them simultaneously.
The 26th Amendment did four noteworthy things. One, it shifted the composition of the Judicial Commission of Pakistan (JCP) to include parliamentarians (in addition to the attorney general and the minister of law), increasing political influence and interference of all processes of the JCP. Two, it increased the JCP’s powers to nominate constitutional benches, which was previously the prerogative of the courts alone.
Three, it created a parliamentary committee to select the chief justice of Pakistan. Prior to this, the senior-most judge was appointed the chief justice of the Supreme Court. Four, it created another category for the removal of a judge under the reason of ‘inefficiency’.
The 27th Amendment further cements the goal, intention and purpose of the 26th Amendment. The 27th introduces a Federal Constitutional Court, taking constitutional matters away from the Supreme Court benches altogether. The appointments of judges to the FCC, from the current Supreme Court judges, will be made by the executive. Second, it changes the composition of the JCP further to now allow FCC judges to become members of the JCP. And, third, the JCP can now recommend the transfer of a judge without any consent or consultation.
The two amendments together allow for two interrelated impacts. The first is to significantly increase the executive's overreach into judicial matters, while simultaneously triggering a staggered, and in turn weaker, judiciary.
The apex court’s main function – that of being a keeper of the constitution – has now been divided between the Supreme Court and the Federal Constitutional Court. The amendments have allowed for the creation of two apex courts – one for constitutional matters and the other for all other civil and criminal matters. The FCC’s decision will take precedence over the Supreme Court's should their decisions contradict each other.
This represents a deliberate division and dilution of judicial power – an echo of the old ‘divide and rule’ tactic of the British Empire, now repurposed to weaken and control an institution whose very purpose is to provide oversight over the executive.
The creation of two apex courts is sure to weaken legal coherence and confidence in both courts and their decisions. It may also lead to conflict between the two, potentially warranting further executive interference and control.
This judicial dilution has been accompanied by the restructuring of the JCP in a way to ensure that the interpretations by the court in constitutional matters align with the executive’s wishes and intentions, creating ‘a standing too close to the courts and their independence’ approach. This can only be seen as problematic.
Though there should always be a working relationship among different state institutions, a natural disharmony and disagreement between the judiciary and the executive, or the legislature, is fundamental to the proper functioning of all organs of the state. In fact, democracy requires it.
But now, a judiciary with its scales titled in the favour of the executive means a judiciary subservient to the executive. That was never the intention of the drafters of the constitution. Instead, they intended to protect the country from further military rule (before this period, there were either governors-general or military rulers that led Pakistan) by ensuring a parliamentary form of democracy and parliamentary supremacy, with a judiciary capable of checking executive and legislative excess to ultimately protect the constitution.
Over 50 years later, through the 27th Amendment, a new fate has been sealed for Pakistan, in which the politicisation of the courts has been formally cemented.
Unfortunately, history shows that the judiciary has allowed itself – sometimes having been coerced, sometimes to retain power and favour, and sometimes, unfortunately, to show their own political allegiance – to be used as a political tool by the ruling elite.
In 1979, Zulfikar Ali Bhutto was found guilty by the Supreme Court and subsequently hanged – a decision the Supreme Court in an opinion in 2024 deemed did not meet the requirements of a fair trial and due process.
In 1996, the Supreme Court upheld the decision of the then-president, Farooq Leghari, to dismiss Benazir Bhutto’s government, claiming evidence of corruption and misrule. In 2018, the Supreme Court imposed a lifetime disqualification on Nawaz Sharif under Article 62(1)(f). In 2025, the Supreme Court ruled that the PTI was not entitled to retain their reserved seats in parliament in the national and provincial assemblies.
These are just a handful of instances in which the top court has, sadly, yielded to political pressure. Yet this unfortunate history cannot serve as the basis for a formal surrender, in which we distort both governance and the judiciary to protect the interests of a select few powerful men while hollowing out the very institutions meant to protect everyone else.
For the sake of a few powerful people, we are allowing our state institutions to be taken to a point from which it will be difficult to return.
The writer is a lawyer and development consultant. She tweets/posts @BenazirJatoi
