In Pakistan, even judges are now under trial

For the first time in Pakistan’s history, lawmakers can handpick who they want as the country’s top judge, which, as you can imagine, poses serious risks to judicial independence of the country. Otherwise, the most senior judge on the Supreme Court tended to become the Chief Justice of Pakistan. It was a sacred rule that kept politics out of the courtroom.

But all this changed in October last year, when Parliament rushed through a vote to change the Constitution for the 26th time (that’s why it’s called the 26th Amendment). The new rules massaged the judicial system by giving Parliament and the bureaucracy greater control over the appointment and evaluation of judges.

As you can imagine, this change has been challenged in court. In fact, the Supreme Court. So now the top judges must decide whether the new rules that apply to them are even legal. The very decision-makers themselves are on trial.

This is what talk shows after 8pm like to call a judicial crisis. If politicians get to choose the Chief Justice then you don’t need to be a constitutional lawyer like Hamid Khan (or the late Asma Jahangir) to figure out that this is very problematic. This is how politicians could get a Chief Justice to decide in their favour on cases such as the Super Tax on companies.

If you’d like to go into more detail…

As you can predict, the 26th Amendment was taken to court. Multiple petitions were filed. But it wasn’t just a matter of hearing the petitions. What unfolded was perhaps one of the strangest legal contortions in our history: before the Supreme Court could even begin debating the merits of the 26th Amendment, its judges would have to ask if they could even legally hear the case.

An eight-member bench led by Justice Aminuddin Khan is hearing 36 petitions, including those filed by the PTI and the bar associations, challenging how the amendment was passed. The petitioners argue it was approved “in the dead of night” without a two-thirds majority in Parliament.

Supreme Court Bar Association President Abid Zuberi said the judges must decide “whether they stand to gain from the law.” Justice Jamal Mandokhail remarked at one of the hearings, “It wasn’t introduced by us — it was passed by Parliament, so don’t blame us.”
The main question is whether serving judges can decide the 26th Amendment’s fate.

Read: SC questions jurisdiction for full court under Article 191A in 26th Amendment case

Lawyers are divided:

1. Should the petitions be heard by a full court of all 15 judges;
2. Should the petitions be heard by a Constitutional Bench under the new law, or;
3. Should the petitions be heard by the 16 judges who served before former CJP Qazi Faez Isa retired?

There is a principle that applies in the Law: nemo judex in sua causa—no one should be a judge in their own case. As lawyer Abdul Basit Cheema put it, “Members of the current bench are direct beneficiaries of the law being challenged. The case must go to a Full Court for both legal and moral legitimacy.”

Whatever the judges decide will tell Pakistan how much it can trust the Supreme Court in future, said lawyer and researcher Simra Sohail. “Using provisions of a disputed law to decide its own fate exposes the fragile balance between law, politics, and justice,” she added.

How it changes the courts

Previously, the senior-most Supreme Court judge automatically became the CJP. Under the new system, a 12-member Special Parliamentary Committee of eight MNAs and four Senators selects one of the three senior-most judges. The Prime Minister forwards the name to the President for approval, and the CJP’s term is now fixed at three years.

The JCP now includes lawmakers and a technocrat, giving the Executive greater influence in judicial appointments and performance reviews.

“They’ve made sweeping changes to how the judiciary functions,” said The Express Tribune’s senior court reporter Hasnat Malik, who has been attending the hearings. “Public-interest cases will now go before Constitutional Benches chosen by the JCP. Over the past year, much of the control has shifted toward the Executive.”

Motive debate

At the latest hearing, senior counsel Akram Sheikh argued the amendment was aimed at shielding the February 2024 general elections from judicial scrutiny.

“There was apprehension that the Supreme Court might probe the elections once Justice Isa retired,” he told the eight-member Constitutional Bench led by Justice Aminuddin Khan. He added, “The case must go to a 24-member Full Court. It’s the only way to ensure fairness.”

Sheikh said the amendment “was crafted to ensure accountability could be avoided” and that the present bench “cannot possibly cut the very branch on which it is sitting.”

Observers link the amendment to ruling-coalition anxieties over the Reserved Seats case. The government delayed notifying Justice Mansoor Ali Shah as senior puisne judge until the amendment took effect, then used the new system to nominate Justice Yahya Afridi, third in seniority, as Chief Justice.

Since then, benches formed under the new law have delivered verdicts favouring the government, including upholding civilian trials in military courts, approving judicial transfers, and overturning the Supreme Court’s July 13 reserved seats judgment, enabling the coalition to secure a two-thirds majority in the National Assembly.

Political backdrop

The amendment passed in October 2024 after intense negotiations. Maulana Fazlur Rehman of the JUI-F mediated between the coalition partners, while the PTI boycotted the vote. The PPP and JUI-F backed key changes, abandoning a proposed Federal Constitutional Court in favour of Constitutional Benches.

Read More: Bilawal warns against overturning 26th Amendment outside Parliament

Prime Minister Shehbaz Sharif called the reform “historic,” saying, “No institution will be above Parliament anymore.” But Opposition leader Omar Ayub Khan described it as “the biggest rollback of judicial independence since 1973.”
Law Minister Azam Nazeer Tarar said it would “restore balance” after years of judicial overreach, but lawyer Aitzaz Ahsan warned it was “a step toward executive control over the judiciary.”

Backlash

The PTI, bar councils, and civil society lawyers argue the amendment violates Articles 175 and 191 by undermining the separation of powers. SCBA President Abid Zuberi called it “an assault on judicial independence.” Former CJP Jawad S Khawaja, through counsel Khawaja Ahmad Hosain, said it “neutralised judicial oversight of the executive.”

By mid-2025, a new lawyers’ movement led by Aitzaz Ahsan, Hamid Khan, Latif Khosa, Mustafa Nawaz Khokhar, Munir A Malik, and Imaan Mazari took to the streets. Mazari said, “Justice has vanished from both courts and Parliament. This struggle must now be taken to the streets.”

Also Read: SC deliberates formation of full court amid 26th Constitutional Amendment challenge

Pakistan’s 26th Constitutional Amendment Explainer [Source: Mehak Nadeem, Design: Ibrahim Yahya]

During deliberations on the new Judges’ Code of Conduct, Justices Mansoor Ali Shah and Munib Akhtar warned in a letter that “any measure that curtails [judicial] independence or can be weaponised to discipline, silence, or control judges must be resisted firmly.” They said that the vagueness of the rules allows “selective application” against dissenting judges.

Critics say the 26th Amendment, the leave policy, and Article V, which Advocate Faisal Siddiqi called “nothing short of gagging the judges”, centralise authority and “muzzle” independent voices.

Barrister Asad Rahim Khan argued that these measures isolate judges “from their bar and community,” making judicial independence dependent on the “virtue or courage of one person” rather than institutional safeguards.

Even the International Commission of Jurists warned that the reform “exposes the judiciary to political influence”. The ICJ warned the amendment violates Article 14 of the International Covenant on Civil and Political Rights, which guarantees equality before an independent and impartial tribunal. Al Jazeera reported it “shifts Supreme Court control to Parliament and sidelines opposition-leaning judges.”

Sheikh argued that if the amendment itself is void, then the constitution of the bench pursuant to it is also legally ineffective. “The bench’s judicial authority would cease to exist, rendering the Constitutional Bench legally illegitimate,” he said. In court, he quipped, “Fortunately, the members of the bench would still retain their heads, but not their hats.”