The passage of the 27th Amendment to the Constitution of Pakistan during the pendency of a petition challenging the 26th Amendment before the Constitutional Bench of the Supreme Court has attracted severe criticism. Detractors argue that it compromises the independence of the judiciary by disturbing the basic structure of the Constitution as preserved by its framers. According to critics, the amendment grants excessive authority to the executive, allowing interference in the appointment and transfer of judges, curtailing the original jurisdiction of the Supreme Court through the omission of Article 184 and diminishing the stature of the Supreme Court by establishing a Federal Constitutional Court (FCC).
The appointment of judges has remained a contentious issue since the inception of the judicial system of Pakistan. The judiciary itself took the task of streamlining the process of appointments, but unfortunately kept the equilibrium tilted towards itself, prioritising its own family demesne. The attempt of Parliament to make the process transparent through the 18th Amendment was thwarted by the Supreme Court when it declared void the role assigned to parliamentarians through a parliamentary committee — intended to ensure transparency and improve the quality of judicial appointments — terming such involvement as interference in judicial appointments.
The demand for a separate constitutional court dates back to the 1990s, when lawyers’ representative bodies called for an independent forum to adjudicate political and constitutional cases without burdening cases of ordinary citizens.
To strengthen democracy, which had suffered from unconstitutional judicial decisions since 1955 — starting with the Maulvi Tamizuddin Khan case — Parliament decided to retake the task of bringing impartial and independent judges of impeccable character by introducing the 26th Amendment of the Constitution. It is not an attempt to undermine the judiciary, though successive elected governments had repeatedly fallen victim to judicial decisions influenced by military dictators, bringing anarchy, unrest and severe economic crises in the country. The intention of the Parliament is to have a strong judicial system for the true administration of justice.
The portrayal of dominance of the executive over the judiciary has no substance, as the amendments are introduced on persistent demand of the legal fraternity to revamp the system of appointment of judges packed with favourites, relatives, juniors, and individuals associated with sitting judges by blocking the path of competent lawyers from being appointed on merit. Parliament’s earlier attempt to break this vicious cycle through the 18th Amendment failed due to judicial intervention. Nonetheless, Parliament remained committed to the principle that no state can survive without an independent judiciary, and that such independence fundamentally depends on merit-based appointments. To this end, an effective and objective-oriented Judicial Commission was reshaped through the 26th and 27th Amendments.
The critics also allege the dominance of the Executive in the Judicial Commission. Out of thirteen members, five are judges, including the chief justice of the Federal Constitutional Court after the 27th Amendment, while five members are from Parliament, along with the law minister and the attorney general. This, critics argue, tilts the balance in favour of the executive. However, this criticism overlooks the fact that two parliamentary members belong to the opposition, and representatives from the bar act as an additional safeguard to ensure merit-based appointments. For the first time, a prescribed nomination form has been introduced, enabling the Commission to objectively assess a nominee’s credentials for appointment to the superior judiciary.
It is also alleged that the transfer of High Court judges without their consent, introduced in the amendment, would be used as a Damocles’ sword to pressure judges into delivering favourable decisions for the executive, and their refusal would result in a reference to the Supreme Judicial Council. This apprehension is misplaced as the Constitution provides transfer of judges under Article 200, and prior to the 1973 Constitution, judges served in different High Courts of West Pakistan under the One Unit system. The sole and true objective of this provision is to improve and harmonise the quality of the judicial system. Judges serving in different regions gain broader exposure to diverse social realities, enabling better administration of justice and protection of public interest. Recently, the Supreme Court itself reproved practices that undermined the dignity of citizens in certain regions and emphasised the need for a uniform judicial approach across the country. Moreover, a judge who functions under the fear of transfer has no right to stay in office, as he will not be able to do justice with his oath of preserving and upholding justice without fear or favour.
The omission of Article 184 has also drawn criticism. Without going into details, the judiciary, instead of making its own house in order, frequently resorted to suo motu powers to interfere in executive affairs. The misuse of this provision is evident: former Chief Justice Iftikhar Muhammad Chaudhry took 79 suo motu notices, while Justice Saqib Nisar initiated 47 during his two-year tenure.
The establishment of the Federal Constitutional Court is perhaps the most controversial aspect of the 27th Amendment. The resignation of two Supreme Court judges in protest has further emboldened opposition to the FCC. However, this ignores the historical context. The demand for a separate constitutional court dates back to the 1990s, when lawyers’ representative bodies called for an independent forum to adjudicate political and constitutional cases without burdening cases of ordinary citizens. Political cases had clogged the Supreme Court, often requiring full-court hearings, particularly after the dissolution of the Benazir Bhutto and Nawaz Sharif governments.
Ironically, many lawyer leaders who now oppose the Judicial Commission’s appointment process and the establishment of the FCC were once at the forefront of these very demands.
Bar associations across the country passed resolutions demanding an independent constitutional court. Notably, the Lahore High Court Bar organised a seminar on 7 December 1996, addressed by former Chief Justice of Pakistan Syed Nasim Hassan Shah and Justice Asif Saeed Khosa (later Chief Justice of Pakistan), both of whom advocated the establishment of such a court and called for transparent judicial appointments. In subsequent years, the Supreme Court Bar Association also endorsed these demands. Ironically, many lawyer leaders who now oppose the Judicial Commission’s appointment process and the establishment of the FCC were once at the forefront of these very demands. Their current opposition appears driven by political considerations, despite their earlier calls to regulate suo motu powers under Article 184 — powers that were sparingly misused to dismiss elected governments.
Reflecting these long-standing demands, all major political parties signed the Charter of Democracy in 2006, committing to transparent judicial appointments and the creation of a Federal Constitutional Court. The objective was to ensure judicial independence, provide equal representation to federating units in constitutional adjudication, and reduce the backlog of cases in the Supreme Court, which had reached nearly 60,000 by early 2025.
Critics argue that making FCC decisions binding on all courts, including the Supreme Court, undermines the latter’s authority. This argument ignores the fact that the FCC is mandated to decide only constitutional matters, while all other cases remain within the Supreme Court’s jurisdiction. Granting appellate or revisional powers to the Supreme Court over FCC decisions would defeat the very purpose of establishing a separate constitutional forum and would only add to the suffering of litigants.
The concept of a constitutional court is neither novel nor radical; more than 80 countries around the world have adopted similar institutions to ensure the smooth administration of justice. In essence, the 27th Amendment fulfils the long-standing demands of the legal community: merit-based judicial appointments and the establishment of a Federal Constitutional Court to serve the cause of justice for the common citizen, for whom this country was created.
The writer is an advocate practising at the Peshawar High Court, Khyber Pakhtunkhwa.
