by: Sahil Naeem

𝐓𝐡𝐞 𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧’𝐬 𝐬𝐞𝐩𝐚𝐫𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐩𝐨𝐰𝐞𝐫𝐬 𝐢𝐬 𝐧𝐨𝐭 𝐬𝐢𝐦𝐩𝐥𝐲 𝐚 𝐦𝐚𝐭𝐭𝐞𝐫 𝐨𝐟 𝐞𝐟𝐟𝐢𝐜𝐢𝐞𝐧𝐜𝐲 𝐨𝐫 𝐜𝐨𝐧𝐯𝐞𝐧𝐢𝐞𝐧𝐜𝐞 𝐛𝐮𝐭 𝐚 𝐟𝐮𝐧𝐝𝐚𝐦𝐞𝐧𝐭𝐚𝐥 𝐬𝐚𝐟𝐞𝐠𝐮𝐚𝐫𝐝 𝐚𝐠𝐚𝐢𝐧𝐬𝐭 𝐭𝐲𝐫𝐚𝐧𝐧𝐲. (𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐀𝐧𝐭𝐨𝐧𝐢𝐧 𝐒𝐜𝐚𝐥𝐢𝐚, 𝐟𝐨𝐫𝐦𝐞𝐫 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐔.𝐒. 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭)

Pakistan, an unfortunate and unnatural state in Southwest Asia, has been in shallow waters since its inception. Every new day brings fresh drama for its people. One day, it’s a military coup; the next, judicial activism; and on another, reckless legislation from a parliament shadowed by the military boot. In short, it’s like a never-ending suspense thriller that keeps everyone on their toes.
The Constitution of 1973, a social contract between the people of Pakistan and the state, guarantees fundamental rights to its citizens and protects them from the malicious acts of the other two branches of government—the legislature and the executive. Historically, both the legislature and the executive have often been under the control of the powerful military. The higher judiciary, too, has provided its shoulder to the khaki boots, legitimizing many of their actions. Yet, the judiciary has always maintained its independence and has done whatever it could to protect the citizens of Pakistan. Even the weakest Chief Justice of Pakistan under the dictator General Musharraf, Justice Irshad Hassan Khan, took a stand for judicial independence because he understood that if the judiciary were surrendered to the executive, outright tyranny would follow.
The Lawyers’ Movement of 2007 wasn’t sparked merely to save a politician in robes, Justice Iftikhar Muhammad Chaudhry, but to ensure that the executive could not interfere with the judiciary and dismiss judges at will. This movement became the final nail in the coffin for dictator Musharraf, forcing him to relinquish both his presidency and his uniform. On that day, the cunning military establishment of Pakistan realized one thing: it could not mess with the unity of the bar and bench. So what did they do? They started investing in bar associations. Their efforts led to the formation of an independent group, currently led by former PCO judge Ahsan Bhoon. Shahzad Shoukat, a member of this group, currently presides over the Supreme Court Bar Association. The bar councils were already under their control. Bar associations were an obstacle to their invasion of the judiciary, and that obstacle has now been overcome by offering plots and houses to lawyers, I am referring to the recent agreements between the SCBA and the DHA.
Having subdued the bar, they moved toward their final aim, subjugating the judiciary to their whims and making it toothless. They struck their blow through the highly controversial 26th Amendment, which was passed by parliament through kidnapping and forced voting of opposition members (thanks to Justice Qazi Faez Isa and company for overturning the Supreme Court’s defection judgment and allowing turncoats).
So, what’s in this new amendment, and why is it destroying judicial independence while violating the constitutional principle of the separation of powers, effectively turning the country into a tyrannical authoritarian regime?
One of the most alarming changes introduced by the 26th Amendment is the appointment process for the Chief Justice of Pakistan. Once a decision rooted purely in judicial procedures, as established in the Al-Jehad Trust case, this role is now subject to the influence of a parliamentary committee and the President. What was once a matter of judicial integrity has now become a political decision, opening the doors for partisan manipulation. A Chief Justice appointed through political favoritism is unlikely to serve justice impartially, particularly in cases that challenge the government or its military backers.
This dangerous maneuver diminishes the judiciary’s autonomy, converting the highest judicial office into a political pawn. How can the judiciary remain a bulwark of justice when its leadership is beholden to political masters? With this change, Pakistan’s judicial independence is slipping further away, leaving citizens vulnerable to decisions that serve political interests rather than justice.
Another problematic aspect is the power granted to the parliamentary committee to evaluate the performance of High Court judges. This effectively translates to: do our bidding, and you can continue; rule against us, and you will be thrown out.
Even more troubling is the creation of a separate constitutional bench within the Supreme Court. This new structure essentially splits the judiciary into two factions, one focusing on constitutional matters and the other on regular cases. Such segregation threatens to create an elite bench whose members owe their positions to political connections rather than merit. This constitutional bench will handle sensitive cases, meaning the most powerful legal decisions in the country will be made by a small group of judges who may not be free from political influence.
The impact on judicial unity is catastrophic. The Supreme Court, which has historically operated as a unified body, will now be divided. Loyalty among judges may shift toward political entities, leading to internal tensions that erode the collaborative spirit necessary for justice. A judiciary divided is a judiciary weakened. Without unity, the courts will struggle to hold the government accountable, and their decisions will be tainted by suspicions of political bias.
This artificial division creates a “state within a state” a parallel judiciary controlled by political forces. Such an imbalance not only undermines judicial solidarity but also places unchecked power in the hands of a few politically influenced judges. The very foundation of judicial independence is at risk.
Perhaps the most damaging aspect of the amendment is the restriction on the judiciary’s suo motu powers, which allow courts to take notice of illegal or unconstitutional actions on their own initiative. Historically, this power has been used to challenge corruption, human rights abuses, and government overreach, often serving as the judiciary’s most effective tool for protecting citizens when other branches of government fail. Stripping the judiciary of this power means it will no longer be able to act as the people’s protector. Instead, it will be reduced to a passive observer, unable to intervene when justice demands action.
The creation of the separate constitutional bench, coupled with restrictions on judicial appointments and the curtailing of suo motu powers, defies the fundamental principle of the separation of powers. The judiciary, once independent and united, is being divided and subdued, its authority crippled. Pakistan is now teetering on the edge of authoritarianism, where the executive and legislature, influenced by the military, can act with impunity.
What was once a beacon of hope in the fight against dictatorship is now being transformed into an arm of political power. Judicial independence, the very heart of a functioning democracy is under siege. The 26th Amendment is not just a legal reform; it is the precursor to a dark era where tyranny reigns, unchecked by the courts. In this new reality, the rights of the people will be trampled, the Constitution twisted, and the last line of defense, the judiciary reduced to nothing more than a hollow shell. As Asad Toor has put it, Qazi Faez Isa has turned the Supreme Court into the tomb of the Constitution and fundamental rights.