By S. M. Hali
A Constitutional Crossroads
The 27th Constitutional Amendment, passed unanimously by Pakistan’s Senate in November 2025, has ignited a constitutional reckoning. Marketed by the government as judicial “fine-tuning,” the amendment proposes sweeping changes: the creation of a Federal Constitutional Court, restructuring of the Judicial Commission of Pakistan (JCP), and curtailment of the Supreme Court’s suo motu powers.
While framed as reform, legal experts warn that these changes threaten to erode judicial independence and concentrate power in the executive.
Justice Athar Minallah, in a widely circulated letter to Chief Justice Yahya Afridi, described the amendment as the judiciary’s “breaking point.” He warned of “systematic erosion of fundamental rights” and lamented the “internal compromises” within the judiciary. “This is not neutrality—it is surrender,” Minallah wrote.
His alarm was echoed by 38 former Supreme Court law clerks, who called the amendment “an unprecedented threat to judicial independence.” Their collective concern reflects a deeper truth: that the judiciary is not merely an institution—it is the conscience of the Constitution.
As John Adams once declared:
“The judiciary must be independent of every other power; otherwise, there is no liberty, no security, no justice.”
What the Amendment Proposes
Federal Constitutional Court: A new court would exclusively handle constitutional matters, effectively sidelining the Supreme Court’s role as the final interpreter of the Constitution.
Restructuring the JCP: The amendment alters the composition and powers of the Judicial Commission, potentially increasing executive influence over judicial appointments.
Limiting Suo Motu Powers: The Supreme Court’s ability to initiate public interest proceedings under Article 184(3) would be curtailed, weakening its role as a protector of fundamental rights.
Legal experts argue that these changes, introduced without public consultation or judicial input, risk politicizing the judiciary. Hafiz Naeemur Rehman, chief of Jamaat-e-Islami, called the amendment a “power grab” and a “distortion of the Constitution,” warning that it concentrates power in the hands of the executive.
Global Lessons: Reform with Safeguards
Several countries have successfully restructured their judicial systems—but with safeguards that ensured independence and public trust.
Country
Reform Highlights
Outcome
Germany
Established the Federal Constitutional Court (Bundesverfassungsgericht) in 1951.
Respected for impartiality, clarity, and insulation from political pressure.
South Africa
Created a Constitutional Court post-apartheid with transparent appointments.
Became a global model for rights-based jurisprudence and transformative constitutionalism.
Italy
Formed the Corte Costituzionale with checks on executive overreach.
Maintains strong public trust and legal consistency.
These courts operate with clear mandates, transparent appointments, and broad-based legitimacy. In contrast, Pakistan’s proposed model lacks these institutional safeguards.
Pakistan’s Divergence
Pakistan’s 27th Amendment diverges sharply from these global examples:
Opaque appointment mechanisms: The restructured JCP may allow political actors to influence judicial selections.
Executive proximity: The proposed Federal Constitutional Court risks becoming an extension of the executive, rather than a check on its power.
Absence of consensus: The amendment was passed without meaningful debate, judicial consultation, or civil society engagement.
Legal scholar Dr. Osama Siddique warns that “constitutional tinkering without institutional reform is a recipe for democratic decay.” He argues that Pakistan’s judiciary needs “strengthening from within, not fragmentation from above.”
A Moral Imperative: Justice in the Quran
The Quran offers profound guidance on justice, especially in moments of institutional strain:
“O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives…”
— Surah An-Nisa (4:135)
This verse underscores the ethical imperative of judicial independence—even when justice challenges power or personal interest.
“Do not let the hatred of a people prevent you from being just. Be just: that is nearer to righteousness.”
— Surah Al-Ma’idah (5:8)
This verse cautions against politicized reforms driven by vendetta or consolidation of power, rather than genuine institutional improvement.
“…and those who respond to their Lord, establish prayer, and whose affair is [determined by] consultation among themselves…”
— Surah Ash-Shura (42:38)
This verse supports the principle of shura—consultation—as a foundation for legitimate reform. It critiques the lack of public and judicial engagement in the amendment process.
The Stakes for Democracy
Judicial independence is not a procedural luxury—it is the lifeblood of constitutional democracy. When courts lose their autonomy, citizens lose their last line of defense against tyranny. The 27th Amendment, if enacted without reform safeguards, risks:
Eroding public trust in justice
Weakening checks and balances
Empowering executive overreach
Pakistan’s judiciary has historically played a pivotal role in defending civil liberties—from the Lawyers’ Movement of 2007–09 to landmark rulings on electoral transparency. Curtailing its powers under the guise of reform risks undoing decades of progress.
Conclusion: Reform Must Not Mean Retreat
If Pakistan seeks to emulate global best practices, it must prioritize institutional integrity over expediency. Judicial reform should be consultative, transparent, and rooted in democratic principles—not driven by political convenience.
As Justice Minallah warned, “History will not remember the amendments passed, but the courage—or silence—of those entrusted with justice.” The judiciary must not become a casualty of constitutional engineering. Instead, it must be fortified as the conscience of the nation.
