Mudassar Nadeem
One day, the humbling of Pakistan’s judiciary may be remembered as a tragic turning point. For now, it resembles a spectacle, one that is both disheartening and alarming. Earlier this week, four judges of the Islamabad High Court approached the Supreme Court, seeking to challenge the recently enacted 27th Amendment. Their objective was clear: to question constitutional changes that, they argued, undermine judicial independence. Yet, rather than being granted an audience, the judges were told to take their petition to the newly established Federal Constitutional Court (FCC). In essence, they were instructed to seek justice from an institution whose very creation they were contesting.
This moment was sobering, not only for the petitioners but for the nation. The four judges had spent months expressing concerns about the “incremental but systematic dismantling” of judicial independence, a process that began with the 26th Amendment and culminated in the latest constitutional change. By redirecting their appeal to the FCC, the Supreme Court appeared more deferential to the very institution that had effectively curtailed its authority. This sends a troubling message about the state of Pakistan’s judicial oversight.
It is crucial to emphasise that these petitioners were not ordinary litigants. All four are sitting judges and recognised members of the superior judiciary. Their petition raised fundamental questions regarding the 27th Amendment: the establishment of the FCC, transfers of judges at the executive’s discretion, and the perceived erosion of judicial independence through the strategic placement of ‘like-minded’ judges. These concerns resonate not only within the legal fraternity but also among international observers, scholars, and a concerned public. The abrupt dismissal of their petition mirrors the way parliament enacted the amendment, reinforcing the perception that a predetermined path has been chosen for the judiciary.
The implications of this development are profound. When judicial bodies are instructed to challenge a constitutional amendment before the very institution that owes its existence to that amendment, the foundational principles of justice and accountability are called into question. The Supreme Court’s redirection of the petition may appear procedural on the surface, yet it highlights a deeper structural issue: the executive’s growing influence over judicial institutions and the narrowing of independent oversight.
The legal battle has further intensified. On Saturday, the four judges, joined by an additional colleague, challenged the transfer of their petition from the Supreme Court to the FCC, specifically contesting an intra-court appeal regarding the constitutional validity of transferring judges from other high courts to the Islamabad High Court. In their petition to the FCC, the judges explicitly labelled the 27th Amendment “unconstitutional,” reiterating that the amendment itself remains under challenge. This development underscores the determination of the judiciary’s independent members to safeguard constitutional principles despite institutional pressures.
Those within the judiciary who have aligned with the regime on the 27th Amendment may opt to maintain their positions, and they are entitled to do so. However, it is imperative that any decision to uphold the amendment be grounded in rigorous legal reasoning rather than reliance on political expedience or doctrinal convenience. Upholding an amendment of this magnitude without transparent justification would further erode public confidence in the judiciary and the broader constitutional framework.
The FCC now stands at a pivotal moment. This case represents an opportunity for the court to demonstrate its credibility, independence, and commitment to the rule of law. Transparent proceedings, ideally televised for public scrutiny, could reinforce the judiciary’s accountability and rebuild some measure of public trust. The court must take this chance seriously, ensuring that its decisions reflect legal principles rather than political pressures.
Beyond the immediate legal implications, the situation raises broader questions about governance and institutional checks and balances in Pakistan. Judicial independence is a cornerstone of democracy; its systematic erosion threatens not only the courts but the very fabric of the state. When appointments and transfers become tools of executive influence, the separation of powers, a fundamental principle of constitutional governance, comes under serious strain. The 27th Amendment, as contested by these judges, highlights the dangers of institutional capture and the challenges of maintaining judicial autonomy in the face of political maneuvering.
Moreover, public confidence in the judiciary is at stake. Citizens are unlikely to trust a system where legal processes appear predetermined and where oversight mechanisms are bypassed or compromised. The spectacle surrounding the 27th Amendment not only affects lawyers and judges but also sends a chilling signal to the broader public about the fragility of constitutional safeguards. The judiciary’s role as a check on executive power is central to maintaining democratic equilibrium; weakening this role destabilises the system.
Legal scholars and policy analysts have repeatedly warned about the dangers of incremental erosion of judicial authority. The 27th Amendment, in conjunction with previous constitutional changes, exemplifies how gradual institutional manipulation can consolidate power while undermining accountability. The dissent expressed by these judges is not merely procedural; it is a defence of constitutionalism and the independence of legal institutions against the creeping influence of political agendas.
In conclusion, the unfolding events surrounding the 27th Amendment and the petitions filed by Islamabad High Court judges are a critical test for Pakistan’s judicial system. The FCC has the opportunity to reaffirm its commitment to legal principles, uphold constitutional norms, and demonstrate that justice is not subordinate to politics. Transparent, reasoned, and publicly accountable proceedings can serve as a corrective measure, ensuring that the judiciary remains a bulwark against authoritarian encroachment and preserves the democratic ethos. The eyes of the nation, legal observers, and international institutions remain fixed on this case, underscoring its historic significance.
The 27th Amendment saga is a stark reminder that the independence of the judiciary cannot be assumed, it must be actively defended. Pakistan’s democratic future hinges not only on the rule of law but on the willingness of its institutions to resist pressures that compromise their integrity. The FCC now has the opportunity to rise to the occasion, set a precedent for judicial courage, and reaffirm that constitutional governance in Pakistan remains more than a formal ideal.
