Governments in Pakistan - civilian, military and hybrid – have often viewed the superior judiciary with suspicion, if not hostility. After 2007, the Judiciary that had earlier granted constitutional cover to General Musharaf became more assertive in the governance of the Executive. Normative statements - anti-corruption, ethical and religious - were aired regularly in the Supreme Court, often aimed at the media. Some of the judges who had taken Provisional Constitutional Order oaths under General Musharaf’s first term ousted judges who took similar oaths in his second term. In 2012 Prime Minister Yusuf Raza Gillani and in 2017 Prime Minister Nawaz Sharif were disqualified for office. In a lengthy judgement, the current prime minister’s family was compared to the Italian mafia.

Alongside, suo motu powers were used excessively, not only to uphold fundamental rights as they were meant to, but also to interfere in Executive decisions. There were also examples of judicial courage, creativity and upholding rights but those were largely exceptions rather than routine. The petition filed by Asma Jahangir on the legality of Action in Aid of Civil Power and her second petition on the constitutionality of military courts never reached conclusion. Given this context it was unsurprising that the current government and its allies among legislators took the opportunity to pass first the 26th Amendment to the constitution and then followed it up with the 27th.

Some commentators have since called the 27th Constitutional Amendment a total destruction of independent judiciary. Their criticism has derived support from the haste evident in rushing through a barely drafted law. While the balance between the Judiciary and the Executive in Pakistan was never delicate, or even civil, enough tolerance of the other pillars of the state was in play to encourage citizens, and even ousted governments, to petition courts to uphold fundamental rights.

A Federal Constitutional Court, whose handpicked judges will, along with the Executive and the Legislature, now handpick succeeding judges, apparently leaves little hope for a petitioner in a case against the state. To file a petition against the state often feels like hitting your head against a mountain. Where the respondent to a suit, in this case the Executive, has selected its own tribunal, the conflict is highlighted and the hope of fair procedure fades. It has been pointed out that there are no clear criteria for the transfer, removal or appointment of judges and these are largely controlled by the Executive, and the meetings of the Special Parliamentary Committee to nominate the chief justice are to be held in camera. The intention of the Executive seems clear. The lack of detail in such a momentous piece of legislation is stark.

Suo motu powers were used excessively not only to uphold fundamental rights, as they were meant to, but also to interfere in Executive decisions.

The newly established FCC is not bound to follow judicial precedents. This adds further uncertainty in a common law jurisdiction where guidance mostly derives from jurisprudence. One can assume that the reason for granting the FCC a clean slate is to spare it embarrassment in disregarding unfavourable decisions. The 26th Amendment went some way in fulfilling this objective. In June 2025, a 10-member Constitutional Bench overturned the decision of a 13-member bench of the Supreme Court from July 2024 in the reserved seats case. Similarly, the Supreme Court’s ruling in October 2024 declaring that military trials of civilians unconstitutional, since they breach Article 10A (right to a fair trial and due process of law), was overruled by the Constitutional Bench on May 9.

It is likely that the first test of the FCC will be to rule on the legality of the 27th Constitutional Amendment and whether the parliament has the power to change the basic structure of the constitution and alter a key feature of it, namely the independence of the judiciary. In doing so, the FCC will no doubt be reminded of some landmark constitutional judgments including those in Asma Jilani, Achakzai, Zafar Ali Shah cases and the 2015 judgment of District Bar Association, Rawalpindi, case where the court ruled that despite constitutional clauses protecting amendments from any form of judicial review (Articles 239-5 and 239-6), a future amendment seen as clashing with judicial independence and fundamental rights could and should be annulled otherwise it would “amount to an abdication of the Judiciary’s constitutional duty.” This was in response to a petition that challenged the 21st Constitutional Amendment and the Pakistan Army (Amendment) Act, 2015, that allowed for the establishment of military courts to try civilians.

Another test for the FCC will likely be to review the legality of the lifetime immunity from criminal and civil proceedings granted to the president, field marshal, admiral of the fleet and marshal of the air force. The Constitutional Bench has already ruled that ordinary citizens can be tried in military courts despite the existence of criminal courts as well as Anti-Terrorism Courts. How will it justify lifetime immunities from any proceedings to those presiding over the Executive?

Presidential immunity for actions taken in the course of duty and during a presidential tenure are guaranteed by the constitution (indeed in many constitutions around the world), but lifetime immunity from all criminal and civil proceedings appears to be taking us back to the Middle Ages. It will not only run contrary to most fundamental rights in the constitution, for example the right to equality, accountability and fair trial, but also be repugnant to Islamic injunctions built on the premise of social justice and equality. The amendment on immunity reminds one of a very different and assertive Supreme Court in 2009, when a 17-member bench unanimously declared the National Reconciliation Ordinance unconstitutional to the dismay of the ruling parties. The NRO was issued by General Pervez Musharraf and granted amnesty to politicians and bureaucrats for corruption and other crimes alleged between 1986 and 2007. The 27th Constitutional Amendment has gone a long way to diminish the independence of an assertive apex court but in the coming months, the bench of the newly appointed court will become a very uncomfortable one to sit on.

The writer is a board member of the AGHS Legal Aid Cell, an advocate of the High Courts and a solicitor of the senior courts of England and Wales. [email protected]X: @sj244