The 27th Constitutional Amendment, adopted in November 2025, has provoked a debate in Pakistan over its significant restructuring of Pakistan’s judicial framework and its impact on Judicial independence. Judiciary is regarded as a “watchdog of democracy” and “the protector of the constitution”, enforcing and interpreting laws. To this end, the judiciary must be non-political and impartial. Article 175(3) of Pakistan’s constitution stipulates that the judiciary shall be progressively separated from the executive. Furthermore, the objective resolution of 1949, which was subsequently incorporated into the constitution, provides that the independence of the judiciary shall be fully guaranteed.
The independence of Pakistan’s judiciary has evolved through constitutional amendments, such as the Fourth and Fifth Amendments, which have constrained the jurisdiction of the superior courts and limited the scope of constitutional remedies, thereby strengthening executive authority. Likewise, the latest 27th amendment, together with the 26th amendment, passed in October 2024, has fundamentally undermined the judicial functions in various ways. The 27th Amendment is not just an amendment to a document; it is an assault on the notion that justice must be insulated from political influence. Santiago Canton, an International Commission jurist, observed that:
“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.”
27th Amendment and the Separation of Powers
Montesquieu (a French judge) proposed the doctrine of separation of powers, under which governmental authorities are divided among separate branches to avoid the concentration of authority, placing particular emphasis on judicial independence to safeguard individual liberty. As he famously observed,
“If the judicial powers are not separated from the executive and the legislative powers, there is no freedom”.
Since 1947, Pakistan has been fighting for equal powers among the three branches of government: the legislature, the executive, and the judiciary. Political elites have always wanted the power in a single branch, i.e., the executive, which is why, if we look at our history, the executive has always been dominant over the other branches. History has revealed that courts in Pakistan have been used as tools for political engineering by imposing pressure on them and restraining them from their powers. Governments in Pakistan have been dissolved from time to time by the executive, and martial laws have been imposed with the validation of the judiciary, damaging the image of the judiciary as an independent pillar of the government of Pakistan.
Decisions made in cases of Molvi Tameezudin, Dosso, and Zulfiqar Ali Bhutto are the most prominent examples of how the judiciary is being used as a tool by the executive for maintaining its own rules. The 27th Amendment has exacerbated the situation further than it was in the past, when the executive relied on pressure and favourable judicial rulings to retain power. This Amendment has restructured the judiciary, placing it under permanent political and executive control rather than just influencing it. This amendment has incorporated executive domination into the Constitution itself, unlike earlier periods when Judicial Independence was weakened by practice.
Judicial Changes Introduced by the 27th Amendment in the Constitution of Pakistan
The Federal Constitutional Court is the apex court.
The 27th amendment authorizes the establishment of the federal constitutional court (FCC) to supervise between two or more governments and to adjudicate matters involving the enforcement of “fundamental rights”. In cases of substantial legal questions relating to the interpretation of the Constitution, this court will have the power to ask for the records of any case in process before a court, to hear an appeal, and to take the appropriate measures in such cases. Moreover, under Article 189, all the decisions of the FCC shall be binding on all the courts, including the Supreme Court of Pakistan. Any cases or petitions pending before any other court that fall under the jurisdiction of the FCC shall stand transferred to the FCC. For now, 22910 out of 56,608 cases have been transferred to the FCC from the Supreme Court.
Consequences
The defenders of the 27th Constitutional Amendment argue that the establishment of the FCC would solve the problem of case pendency and would reduce the burden on the Supreme Court to focus only on civil and criminal matters and to decide them promptly. However, this is not the truth. The Supreme Court’s case accounts for less then 3% of the pending cases nationwide. The rest of the proceedings are pending in the lower courts, where the limited resources and delays lead to millions of cases pending. Thus, this is merely the shifting of powers rather than resolving the judicial burdens.
After this amendment, powers that were once exercised by the Supreme Court, being the apex court of the country, are now exercised by the FCC. The Supreme Court has been reduced to a final appellate court for civil and criminal matters only. As a result, the Supreme Court’s role as the highest constitutional guardian has been diminished.
Transfer of the judges:
Article 200 validates the transfer of judges of the High Court to another High Court on the recommendation of the Judicial Commission by the President. Refusing such a transfer will expose the judges to disciplinary proceedings and dismissal.
Before the 27th Amendment, the president did have the power to transfer judges from one high court to another, but this would require the consent of the judge to be transferred. Therefore, this requirement served as an important safeguard against the potential misuse of executive authority, particularly in cases where judges were perceived as unwilling to deliver favourable rulings. Unfortunately, the 27th Amendment has now validated the transfer of judges even without their consent.
Consequences
This amendment has exposed the judges to proceedings merely on the grounds of refusing the transfer before the Supreme Judicial Council, a body that holds judges accountable. There are also no rules prescribed based on which judges may be transferred from one court to another, and therefore, there is no proper way to determine whether such transfers are based on legitimate institutional needs or are punitive in nature. While it is a well-established rule that Judges can be removed on the grounds of misconduct or incompetence, the Constitution does not explain how a refusal to accept a transfer constitutes misconduct. As a result, this alteration in the constitution undermines judicial independence by subjecting the judiciary to a persistent threat of punitive or retaliatory transfers.
Appointments of the judges:
Under Article 175C, the first batch of judges and the Chief Justice of the Federal Constitutional Court (FCC) are appointed by the President on the advice of the Prime Minister. These judges also form a part of the Judicial Commission (the judicial appointment body). Subsequent appointment of the judges of the FCC would then be made on the recommendation of the Pakistan Judicial Commission, and the appointment of the FCC’s Chief Justice shall be made by a Special Parliamentary Committee.
The Judicial Commission of Pakistan was established by the 26th amendment for judicial appointments, ending the ultimate authority of the judiciary for making such appointments, consisting of nine members, 5 of whom were judges, making them a majority. However, the 27th Amendment has reduced them into a minority, with 5 out of 13 members being judges, raising serious concerns about judicial independence.
Consequences
This arrangement reveals that there is direct control of the executive over the judicial appointments because of the influence of the executive branch over the composition of the FCC, as the chief justice of the FCC and judges of the FCC are initially appointed by the executive, which then makes a part of the Judicial Commission of Pakistan for the appointment of judges. As a result, the JCP’s composition allows for direct political influence over the judiciary by the executive. This change in the constitution departs from the principle of self-governance of the judiciary and carries the risk that judicial appointments may be influenced by political loyalty rather than merit, integrity, or competence.
Conclusion
The 27th Amendment has dynamically changed the structure of the Judiciary in Pakistan. It has shifted the balance of power between the executive, judiciary, and legislative branches. There has been abuse of power and institutional clash in Pakistan, which has constructed the political culture of the country. The executive branch has been using the power abusively and has always sought to maintain the judiciary subservient to it to uphold its own rules and regulations. The reason behind this is the lack of separation of powers and the absence of checks and balances, which only exist in the constitution, but have never been put into practice.
The recent 27th Amendment has further eroded the Constitution by giving sweeping powers to the executive over the judiciary. It authorizes the creation of a Federal Constitutional Court, whose rulings will be binding on the Supreme Court and will have the power to overrule its decisions, thereby diminishing the Supreme Court’s constitutional supremacy in the country. Furthermore, the initial composition of the FCC is to be made by the President on the advice of the Prime Minister, granting the executive branch a dominant role and a decisive influence over the judicial functions by appointing individuals who would benefit them the most. By appointing people who are likely to share its interests, this institutional framework allows executive intrusion into judicial functions.
In effect, this Amendment essentially deprives the judiciary of its independence and authority by formally granting power and control to the executive branch over it. It has traded merit for loyalty and independence for influence.
As John Adams aptly observed,
“The judiciary must be independent of every other power; otherwise, there is no liberty, no security, no justice.”
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